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WOODFALL'S       ^^iJ 


LAW  OF 


Landlord  and  Tenant. 


^jje  Etjirtenitlj  IStiition. 


J.   M.   LELY,  Esq., 

OF  THE   INNER  TEMPLE,    BAUKISTER-AT-LAW ;    EDITOR  OP 
"  HODGES   ON   RAILWAYS,"   ETC. 


FIRST  AMERICAN,  FROM  THE   THIRTEENTH  ENGLISH,  EDITION 


WILLIAM   WEBSTER. 


Volume  I. 


NEW   YORK   AND   ALBANY: 
BANKS  &  BROTHERS,   LAW  PUBLISHERS. 
1890.  / 


r 

V,   \ 


COPTRIGHT,  1890, 

By  BAXKS  &  BEOTHERS. 


PREFACE   TO   AMERICAN   EDITION. 


Woodfall's  "Landlord  and  Tenant"  was  first  pub- 
lished in  1802,  remodelled  in  1830,  and  the  thirteenth 
English  edition  was  issued  in  January,  1886.  The 
high  standing  of  this  treatise  in  England  and  America 
makes  any  lengthy  commendation  on  the  part  of  the 
American  editor  unnecessary. 

The  thorough,  practical,  and  scientific  character  of 
the  treatise,  with  the  historical  sketch  it  contains,  gives 
it  great  value  to  any  one  desiring  an  accurate  knowl- 
edge of  this  branch  of  the  law.  With  the  exception 
of  statutory  matter,  easily  distinguishable,  the  greater 
part  of  the  principles  laid  down  are  law  to-day  in 
America.  Statutes  more  or  less  diverse  and  other 
localisms  exist  in  all  the  states,  separating  one  from 
another  almost  as  much  as  from  England.  It  is  the 
province  of  the  American  editor,  so  far  as  he  may, 
to  point  them  out  and  to  explain,  sustain,  or  qualify 
the  doctrines  of  the  text  by  the  American  decisions. 
This  will  relieve  the  practitioner,  in  part,  from  the 
labor  of  examining  the  local  decisions.  He  has  also 
added  some  topics  in  his  notes  which  have  never  been 
adequately  treated  before ;  as  well  as  given  a  full 
discussion  of  all  the  more  important  points  in  land- 
lord and  tenant  law,  with  a  view  to  making  the  trea- 
tise of  the  utmost  value  to  the  American  bar. 

W.  W. 

Boston',  December,  1889. 


TABLE    OF   CONTENTS. 


[References  are  to  the  star  paging.] 


FA6E 

Table  of  Cases  cited ix 

List  of  Abbreviations         .... 

1 

COLLECtlON   OF   LEADIXG  PROPOSITIONS       .        .        .     liii 

CHAPTER 

I.  —  By  whom  Terms  may  be  granted 1 

II.  —  To  whom  Terms  may  be  granted 

68 

III.  —  Of  what  Terms  may  be  granted 

79 

IV.  —  Agreement  for  Lease 

85 

V.  —  The  Lease  :          .... 

124 

Definition  of  Lease . 

124 

What  Leases  must  be  by  Deed 

127 

Form  of  Lease 

130 

Construction    .... 

132 

Premises  demised    . 

138 

Term  granted .... 

144 

Reddendum     .... 

158 

Express  Covenants  . 

159 

Implied  Covenants  . 

172 

Exceptions  and  Reservations  . 

177 

Provisoes  and  Conditions 

180 

Indorsements,  Schedules,  &c.   . 

183 

Stamp 

184 

Execution        .... 

188 

Registry 

191 

Costs  of  Lease  and  Counterpart 

195 

Solicitors'  Charges  . 

196 

Entry  of  Lessee 

197 

"  Void  "  or  "  Voidable  "  . 

197 

Leases  under  Powers 

199 

Leases  in  Reversion 

210 

Concurrent  Leases  . 

211 

VI 


TABLE   OF   CONTENTS. 


[References  are  to  the  star  paging.] 

PAGE 

Estoppel ..........     213 

Bond  for  Performance  of  Covenants        ....     216 

Rectification  of  Erroneous  Lease     .         .         .         .         .217 

Cancellation  of  Lease  for  Fraud,  Misrepresentation  or 
Concealment        .         . 218 


VI.  —  Tenancies  for  less   Term   than  Years  and   Quasi 
Tenancies  : 
Generally 

From  Year  to  Year 
For  less  than  a  Year 
At  will    .... 
On  Sufferance . 
Mortgagor  and  Mortgagee 
Master  and  Servant 
Vendor  and  Vendee 

VIL — Substitution  of  Parties  to  the  Contract  of  Ten 
ANCY  BY  Assignments,  &c.  : 
Assignments  generally     . 
Contract  for  Assignment 
Assignment  of  Reversion 
Severance  of  Reversion    . 
Assignment  of  Term 
Severance  of  Term  . 
Sub-lease          .... 
Attornment     .... 
Executions       .... 
Bankruptcy      .... 
Marriage          .... 
Death 

VIII.  —  Termination  of  the  Tenancy 
Modes  of  Termination     . 
When  Term  is  limited  conditionally 
Surrender 

Merger    .... 
Forfeiture 

Relief  against  Forfeiture 
Notice  to  Quit 

Under  Agricultural  Holdings  Act 
Notice  to  determine  a  Lease  pursuant  to  a  Power  therein 
Disclaimer 
Death       .... 

IX.  —  Rknkwai,  of  Leases,    and    of    the    Exercise   of   an 
Oi'TioN  to  Plrciiase 


219 
219 
219 
224 
226 
230 
232 
236 
237 


239 
240 
252 
255 
257 
264 
264 
266 
270 
274 
285 
286 


295 
296 
296 
308 
310 
326 
332 
335 
3.57 
360 
363 

304 


TABLE   OF   CONTENTS. 


Vll 


X.— 


XI.- 
XIL- 

XITI, 
XIV. 

xx 

XVI, 


[References  are  to  the  star  paging.] 
Rent  : 

Different  kiiid.s  of  Rent  . 
Reservations  of  Rent 
Penalty  or  Liquidated  Damages 
AVhen  Rent  is  due  .... 
Payment  of  Rent     .... 
Apportionment  of  Rent  . 
Continuance  of  Lessee's  Liability    . 
Stipulation  of  Abatement  in  case  of  Fire 

Distress  for  Rent  .... 


,  &c. 


SERVATIOX   OF 


-Remedies  of  Wrongful  Distresses 

Replevin 

Action  for  Damages 

—  Action  for  Rent     .... 

—  Use  and  Occupation 

—  R.\tes,  Taxes  and  Assessments  . 

—  Obligations  with  respect  to  the  Pre 

THE  Property,  &c.  : 

Express  Contract  to  repair,  &c. 
Implied  Contract  to  repair,  &c. 
Remedies  for  Breach  of  Contract 
Obligations  to  cultivate,  &c.  . 

Waste 

Fences  and  Party  AValls 

Trees  and  Timber 

Fixtures  ..... 

Survey  and  Valuation  of  Dilapidations,  Fixtures,  &c 

XVII.  —  Ordinary  particular  Covenants: 

Insurance  against  Fire 

Not  to  assign  or  sublet  without  Licence 
For  Residence  on  the  Premises      .... 
For  or  against  Particular  Trades  .... 
Dealing  with  Particular  Persons   .... 
Re-delivery  of  Fixtures,  Goods,  Part  of  the  Land,  &c, 
For  Quiet  P^ii joyment 

XVIII.  — Rights  of  Common,  Sporting,  &c.        .         .         . 

XIX.  —  Rights  and   Liabilities  as    between  Landlord  or 
Tenant  and  Third  Parties 

XX.  —  Rights  and  Liabilities  on  Cesser  of  the  Te.n.\ncy  : 
.  Tenant's  Duty,  &c.,  at  end  of  Tenancy 
Consequences  of  holding  over 


375 

379 
300 
394 
39G 
39G 
407 
410 

411 


499 
521 

528 

535 

554 


587 
596 
599 
603 
605 
613 
616 
620 
647 


651 
656 
663 
663 
672 
673 
674 

684 
732 

740 
743 


Vlll 


TABLE   OF   COKTENTS. 
[References  are  to  the  Btar  paging.] 


Double  Value .... 

Double  Reut   .... 

Emblements 

Outgoing"  and  Incoming  Tenants  . 
Partial  Occupation 

Table  of  Customs  . 
Compensation  for  Improvements  . 

XXI.  —  The  Agricultural  Holdings  Act. 


1883 


XXII.  —  Recovery  of  the  Premises  by  the  Landlord 
By  Proceeding  in  the  High  Court 
Under  Order  XIV.         ...... 

By  Proceeding  in  the  County  Court 

By  Proceeding  before  Justices  of  the  Peace 

XXIII.  —  Criminal  Law: 

Letting  infected  House  or  Lodgings 
Letting  House  as  Brothel 
Larcenj'^  by  Tenants  or  Lodgers    . 
Injuries  to  Buildings  by  Tenant   . 
Forcible  Entry  and  Detainer 


PAGE 

74") 
748 
749 
752 
754 
754 
765 

76!» 

786 
794 
810 
829 

841 
841 
842 
843 
843 


INDEX 


848 


TABLE    OF   AMERICAN    CASES. 


[The  references  are  to  the  bottom  paging.] 


PAGE 

Abbot  v.  Hermon,  25,  29 

V.  K.  C.  &  St.  J.  R.  R.,  1081 

Abbott  V.  Allen,  270 

V.  Johnstown  &c.  R.  R.  Co.,       28 

V.  Winchester,  71 

Abeel  v.  Radcliff,  146,  147,  8:^0 

Abercrombie  v.  Redpatb  404 

Acker  v.  Wltherell,  388 

Adams  v.  Goddard,  498,  952 

V.  La  Comb,  683 

r.  Lee,  951 

V.  McKesson,  204,  205 

V.  Pease,  1082,  1083 

V.  Townsend,  164 

Addleman  v.  Way,  935 

Aiken  v.  Smith,  204 

Ala.  Gold  Life  Ins.  Co.  v.  Oliver, 

223,  404,  406,  621 
Albany  Inst,  for  Savings  v.  Bur- 
dick,  346,  347 
Alexander  v.  Dorscv,  475 
I'.Tolleston  Club,  113,130, 251, 476 
Allen  V.  Bartlett,              351,  354,  358 
V.  Culver,            265,  266,  274,  900 
V.  Kellam,  86 
V.  Kennedy,                                 955 
V.  Moony,"                           955,  957 
V.  Pell,                                  274,  824 
V.  Thayer,                                    831 
Allenspach  v.  Wagner,                    266 
Almon  V.  Woodill,                             231 
Alston  ('.  Alston,                                531 
Alvord  Carriage  Co.  ik  Gleason,     958 
Alwood  V.  Ruckman,        204,  205,  206 
Ammidown  v.  Ball,                            233 
Amory  v.  Kannofsky,                        481 
V.  Lawrence,                                440 
Anderson's  Appeal,                            710 
Anderson  i).  Midland  R.  R.  Co.,      353 
V.  Prindle,                   353,  474,  541 
Andis  V.  Personett,                            297 
Ansley  v.  Peters,                               387 
Anthony  v.  Lapham,                      1084 
Antoni  v.  Belknaj),                             957 
Appeal  of  Stoughton,  68 
Appeal  of  Winton,                    265,  270 
Applegate  v.  Crawford,                     683 
Arguello  v.  Kdinger,                 157,  166 
Armstrong  v.  Wheeler,    388,  415,  817 


Ashbury  Ry.  Carriage  &  Iron  Co. 

r.  Riche,  122 

Ashford  v.  Hack,  415,  816 

Ashley  v.  Warner,  474,  476 

V.  Wolcott,  1080 

Ashmun  v.  Williams,  957 

Ashton  V.  Pryne,  160 

Astor  V.  Lent,  82,  418 

V.  Miller,  87,  423,  425 

Atkins  V.  Boardman,  291 

V.  Sleeper,  246,  555 

Atkinson  v.  Lester,  1197 

Atkinson's  Heirs  v.  Lindsey,  459 

Auer  V.  Penn,  481 

Austin  V.  Hudson  Riv.  R.  R.,        1126 

r.  Rutland  R.  R.,  1083 

V.  Sawyer,  230,  290,  935 

V.  Stevens,  5,  578 

Avery  v.  Brown,  823 

V.  Pixley,  631 

V.  Stewart,  247 

Ayer  v.  Bartlett,  935 

Ayres  v.  Depras,  709 

V.  O'Farrell,  822 

Babcock  v.  Scoville,  87, 388,  410,  415, 

423,  425 

Babington  v.  O'Connor,  262,  415 

Bacon  v.  Bowdoin,  154 

Bagley  v.  Fletcher,  61 

Bailey  v.  Fillebrown,  290 

V.  Richardson,  495 

V.  Wright,  709 

Bain  v.  Clark,  711 

Baird  v.  Brown,  229,  290 

Baker  v.  Adams,  593 

V.  Hays,  1197 

V.  Jordan,  290 

V.  Kennett,  61 

V.  McDowell,  289 

Bald  V.  Hagar,  957 

Baldwin  v.  Walker,  954 

Ball  V.  First  Nat.  Bank,  459,  462 

Ballard  v.  Walker,  149 

Bancroft  v.  Wardwell,  383 

Bangor  v.  Lansil,  1081 

Bank  of  Augusta  v.  Earle,  123 

Bank  of  Columbia  v.  Patterson's 

Admr.,  25,  26,  28 


TABLE   or   AMERICAN   CASES. 


PAGE 

Bank  of  Penn.  v.  "Wise,  404,  4o5 

Bank  of  U.  S.  )•.  Dandridge,  25,  20 

Baptist  Churcii  v.  Mulford,  25 

Barber  r.  Hose,  825 

Barker  v.  Hayes,  1197 

r.  Mceli.  Ins.  Co.,  28 

Barkley  r.  Wilcox,  1081 

Barlow  v.  Wainwriglit,  353 
Barnes  v.  Boston  &  Maine  R.R., 

165,  166 

Barnes  v.  Dean,  1132 

Barnev  v.  Keith,  281 

r.' Keokuk,  1082 

Barstow  v.  Gray,  149 

Bartels  v.  Creditors,  495 

Bartlett  r.  Cowles,  72 

V.  Earrington,  631,  632,  821 

V.  Wood,  955,  959 

Barton  v.  Smith,  383 

Basconi  r.  Denipsey,  1118 

Bass  Foundry  r.  Gallentine,  959 

Batciielder  r.  Batchelder.  474 

Bates  V.  Boston  &N.Y.  Cent.  R.R. 

Co.,  24 

Batterman  ;-.  I'ieree,  825 

Bay  State  Bank  v.  Kiley,  543 

Beiich  V.  Crain,  901 

Beard  r.  Murpliv,  1081 

Be.lford  v.  Terliune,  414,  426 

Bedinger  v.  Wharton,  61 

Beear  v.  Flues,  211 

Beecher  i\  Crouse,  64,  C>A 

Beeler  I'.  Canhvell,  1197 

Belknaj)  v.  Hastings,  709 

Bellas  V.  Hays,  272 

Benian  i\  Kufford,  122 

Benedict  v.  Benedict,  956 

V.  Lynch,  149,  164 

Benner's  Lessee  r.  Platter,  1082 

Bennet  v.  Bittle,  6.32,  822 

Bennock  v.  Whipple,       359,  475,  500, 

1195 

Benson  v.  Anderson,  719 

V.  Bolles,  401 

V.  .Chicago  &  Alton  R.R.,       1080 

r.  GottJKinier,  048 

Berpongren  v.  Aldrich,  51,  161 

Berkeley  r.  Smith,  1074 

Berks.  &r..  Hoad  ,-.  Myers,  26,  123 

Benial  r.  Ilavious,  205 

Bcrrie  r.  Woo.ls,  264,  266,  268 

Berrv  '•.  Carle,  1083 

I'.  M'.Mullen,  262,265 

Bettison  r.  Hudd,  837 

Bevan  v.  Crooks,  691 

Beyer  r.  Fenstennacher,  701) 

Bickfonl  r.  Page,  270 

Bigelow  /'.  Collamore,  81(i 

r.  Kiiini'V,  61 

V,  W'il.son,  246,  247 


Billings  V.  Canney, 
Binns  v.  Hudson, 
Birch  V.  Linton, 
Birmingham  r.  Rogers, 
Bishop  V.  Doty, 


PAGE 

155,  245 

694,  710 

60,  61 

205,  648 
204 


Black  r.  Del.  &  Rar.  Canal  Co., 

28, 122 

V.  Ligon,  52 

V.  The  State,  1197 

Blair  v.  Claxton,  821 

Blake  v.  Coats,  205,  1126 

V.  Sanderson,  388,  410 

Blanchard  c.  Ames,  130,  501 

V.  Baker,  1084 

Blanche  r.  Bradford,  683 

Blancke  v.  Rogers,  954 

Blethen  v.  Towle,  957,  958 

Blish  V.  Harlow,  549 

Bliss  V.  Whitney,  955 

Blood  V.  Spaulding,  917,  918 

Blumenberg  r.  Myres,  414,  426 

Blumenthal  cBloomingdale,  212,224, 

351 
Board  &c.  i:  Lafayette  &c.  R.  R. 

Co.,  122 

Boehm  v  Rich,  481 

Boggs  V.  Black,  567 

Bold  r.  O'Brien,  284 

Bolton  V.  Tomlin,  211 

Bomier  v.  Caldwell,  166 

Bond  V.  Ward,  647 

Bonnecaze  i'.  Beer,  912 

Bonney  v.  Foss,  359 

Boody  V.  McKenney,  61 

Bool  r.  Mix,  59,  61,  62 

Bordman  i\  Osborn,  619 

Boreel  v.  Lawton,  821,  822 

Borst  I'.  Emjiie,  291 

Bosler  v.  Kuhn,  446 

Boston  V.  Binney,  831 

Boston  Bank  v.  Chamberlin,  60 

Boston  &  Wore.  R.  R.  Co.  v.  Rip- 
ley, 631,  822 
Bostwick  V.  Atkins,  60 

V.  Frankfield,  476,  495,  591 

Botts  V.  Armstrong,  1196 

Boucher  v.  Van  Buskirk,  149 

Boudette  v.  Pierce,  345 

Boulton  V.  Blake,  410,  415,  629 

Bowditcii  v.  Cliickering,  224 

Bowe  V.  11  unking,  282,  283,  913 

Bowker  v.  Bradford,  71 

Howlsby  );.  Speer,  1081 

Bowser  v.  Scott,  658 

Boyce  v.  Bakewell,   262,265,  388,  418 

r.  Brown,  1070 

Boyd  V.  MeCombs,  593,  (il9 

Boynton  v.  Morgan,  632 

Braddee  v.  Wiley,  404,  435 

Bradish  v.  Sclienck,  203,  204 


TABLE   OF    ATkrERICAN    CASES. 


XI 


PAGE 

Bradley  v.  Covel, 

630 

V.  Goicouria, 

481,  (531 

V.  Piggot, 

050 

V.  Rici', 

10H3 

Brady  v.  Peiper, 

274 

Brakely  v.  Sliarp, 

1090 

Branger  v.  Manciet, 

283,  284 

Braxon  v.  Bressler, 

1083 

Brazier  v.  Ansley, 

203 

Breed  v.  Pratt, 

77 

Brelier  v.  Reese, 

224 

Brennan  v.  Jack, 

830 

Brewer  v.  Dyer, 

387 

V.  Harris, 

531 

Brewing  v.  Berrymaii, 

86,  211,  218, 

235,  351 

Brewster  v.  Miller, 

283 

Brick  V.  Mitldletun, 

1190,  1275 

Brick's  Estate, 

08 

Bridger  v.  Pierson, 

291 

Bridgcrs  v.  Dill, 

593,  048 

Bridgham  v.  Tileston, 

387 

Briggs  V.  Hall, 

()30 

V.  Large, 

691,  719,  730 

V.  Oaks, 

297 

Brigham  v.  Hawley, 

■  822 

V.  Smith, 

1072 

v.  Wheeler, 

65 

Brinley  v.  Mann, 

24 

Brinton  v.  Datas, 

434 

Brisban  v.  Boyd, 

170 

Brisben  v.  Wilson, 

719,  730 

Brook  line  v.  Mackintosh,                1086 

Brooks  V.  Wheelock, 

144,  152 

Brown  v.  Alfriend, 

822 

V.  Duncan, 

709 

V.  Fay, 

694 

V.  Jaquette, 

205 

V.  Keller, 

500 

V.  Maine  Bank, 

247 

V.  Newbold, 

917 

I'.  Sims, 

691 

V.  Thnrston, 

290, 1145,  1146 

Brownell  v.  Welch, 

542 

Brudenell  v.  Vaux, 

531 

Bryant  v.  Tucker, 

475,  500,  1195 

Buck  V.  Dowley, 

164 

Buckley  v.  Russell, 

154,  660 

Bucknam  ;.'.  Bucknam 

19 

Buckner  v.  Jewell, 

445,  446 

Buckwalter  v.  Klehi, 

459,  462,  591 

Buffalow  I?.  Buffalow, 

77 

Bukup  V.  Valentine, 

711 

Bulkley  v.  Dolbeare, 

1118 

Bullock  I'.  Wilson, 

1082 

Bulmer  v.  Brumwell, 

U6,  347 

Bunton  v.  Richardson, 

373 

Burba nk  ;;.  Dyer, 

354 

Burchard  v.  Rees, 

709 

Burden  v.  Thayer, 

388,  404 

FAOS 

Burdick  v.  Clieadle,  1128 

Burnell's  Estate,  459 

Burns  v.  Bryan,  82 

V.  Cooper,  205,  404 

V.  Cox,  459 

Burnsidc  r.  Twitchell,  956 

Burrill  c.  Naliant  Bank,        26,  27,  28 

Burroughs  r.  Clancey,  823 

V.  Saterlee,  1094 

Burt  I'.  State,  1275 

Bush  V.  Coles,  289 

Bussman  v.  Ganster,  1003 

Butler  r.  Church,  Kiti 

V.  Kidder,  481 

V.  Page,  955 

V.  Peck,  1081 

Butterfield  v.  Baker,  290 

Butts  V.  Andrews,  178 

?!.  Voorhees,  1274 

Byrne  v.  Van  Iloesen,  04,  67 

Cadw^alader  v.  Tindall,  707 

V.  West,  77 

Ciesar  v.  Karutz,  283,  823,  914 

Cage  V.  Pliillips,  823 

Cairo  &c.  R.  R.  Co.  r.  Wiggins 

Ferry  Co.,  358,  373 

Caldcleugh  v.  HoUings worth,  730 

Caldwell  v.  Julian,  1133 

Calvert  v.  Bradley,  87,  424 

Camden  &  At.  R.  R.  Co.  v.  May's 

Landing,  122 

Cameron  v.  Todd,  424,  817 

Campan  v.  Sliaw,  68 

Campbell  v.  Arnold,  1118 

V.  English,  67 

V.  Portland  Sugar  Co.,    912,  1122 

V.  Proctor,  21,  22,  475,  500 

Can.  Perm.  Loan  &  Sav.  Soc,  87 

Canal  Bridge  v.  Gordon,  25 

Canal  Comm'rs  v.  People,  1061,  1082, 

1083 
Capen  ?'.  Peckham,  954 

Cappes  V.  Sibley,  220 

Carey  v.  Richards,  353,  354 

Carhart  v.  Auburn -Gas  Co.,  1086 

Carl  V.  Lowell,  1132 

Cnrleton  &c.  R.  R.  v.  Grand  South 

Ry.  Co.,  28,  161 

Carlilc's  Appeal,  461 

Carnavan  r.  Gray,  1132 

Carpenter  r.  Gillespie,  648 

i'.  United  States,  383 

Carr  v.  Georgia  R.  R.,  956 

V.  Wallace,  1055 

Carrig  v.  Dee,  1074 

Carroll  v.  St.  John's  Society,  122 

Carson  v.  Blazer,  1082 

V.  Veitch,  837 

Case  V.  Haight,  289 


TABLE   OF   AMERICAN   CASES. 


PAGE 

Bank  of  Tenn.  r.  Wise,  404,  -loo 

Bank  of  U.  S.  v.  Dandridge,  25,  26 

Baptist  Church  v.  Mulford,  25 

Barber  v.  Rose,  825 

Barker  v.  Hayes,  lli^7 

r.  Mecli.  Ins.  Co.,  28 

Barkley  v.  Wilcox,  1081 

Barlow  v.  Wainwright,  353 
Barnes  r.  Boston  &  Maine  R.R., 

165,  166 

Barnes  v.  Dean,  1132 

Barney  v.  Keith,  281 

V.  Keokuk,  1082 

Barstow  ;•.  Gray,  149 

Barteis  v.  Creditors,  495 

Bartlett  v.  Cowies,  72 

V.  Farrington,            631,  632,  821 

V.  Wood,  955,  959 

Barton  v.  Smith,  383 

Basooni  ik  Denipsey,  1118 

Bass  Foundry  v.  Gallentine,  959 

Batclielder  c.  Batclielder  474 

Bates  V.  Boston  &  N. Y.  Cent.  R.R. 

Co.,  24 

Batternian  v.  Pierce,  825 

Bay  State  Bank  v.  Kiley,  543 

Beach  v.  Crain,  901 

Beard  v.  Murph}-,  1081 

Bedford  v.  Terhune,  414,  426 

Bedinger  ;•.  Wharton,  61 

Beear  v.  Flues,  211 

Beeclier  v.  Crouse,  64,  (58 

Beeler  v.  Cardwell,  1197 

Belknap  v.  Hastings,  709 

Bellas  V.  Hays,  272 

Benian  v.  Rufford,  122 

Benedict  v.  Benedict,  956 

r.  Lyncli,  149,  164 

Benner's  Lessee  r.  Platter,  1082 

Bennet  v.  Bittle,  632,  822 

Bennock  v.  Wiiipple,       359,  475,  500, 

1195 

Benson  v.  Anderson,  719 

V.  Bolles,  491 

V.  .Chicago  &  Alton  R.R.,        1080 

i:  Gottheinier,  048 

Bergengren  v.  Aldrich,  51,  161 

Berkeley  v.  Smith,  1074 

Berks.  &c.  Road  c.  Myers,  26,  123 

Bernal  v.  Ilavious,  205 

Berrie  v.  AVoo.ls,  264,  266,  268 

Berry  r.  Carle,  1083 

r.  M'MuIlen,  262,  2C)5 

Bettison  r.  Biidd,  837 

Bevan  v.  Crooks,  691 

Beyer  r.  Fenstcrniachor,  709 

Bickford  r.  Page,  270 

Bigelow  r.  CoUainore,  816 

r.  KiniK'V,  61 

i;.  Wilson,  240,247 


Billings  V.  Canney, 
Binns  v.  Hudson, 
Birch  V.  Linton, 
Birmingham  v.  Rogers, 
Bishop  V.  Doty, 


PAGE 

155,  245 

694,  710 

60,  01 

205,  648 

204 


Black  r.  Del.  &  Rar.  Canal  Co., 

28,  122 

V.  Ligon,  52 

V.  The  State,  1197 

Blair  v.  Claxton,  821 

Blake  v.  Coats,  205,  1126 

V.  Sanderson,  388,  410 

Blanchard  v.  Ames,  130,  591 

I'.  Baker,  1084 

Blanche  v.  Bradford,  683 

Blancke  v.  Rogers,  954 

Blethen  v.  Towle,  957,  958 

Blish  V.  Harlow,  549 

Bliss  r.  Wiiitney,  955 

Blood  V.  Spaulding,  917,  918 

Blumenberg  v.  JNIyres,  414,  426 

Blumenthal  r.Bloomingdale,  212,224, 

351 
Board  &c.  i:  Lafayette  &c.  R.  R. 

Co.,  122 

Boelmi  1!  Rich,  481 

Boggs  V.  Black,  567 

Bold  r.  O'Brien,  284 

Bolton  V.  Tomlin,  211 

Bomier  r.  Caldwell,  166 

Bond  V.  Ward,  647 

Bonnecaze  v.  Beer,  912 

Bonney  r.  Foss,  359 

Boody  i;.  McKenney,  61 

Bool  V.  Mix,  59,  61,  62 

Bordman  v.  Osborn,  619 

Boreel  v.  Lawton,  821,  822 

Borst  V.  Kiiii)ie,  291 

Bosler  v.  Kulin,  446 

Boston  V.  Binney,  831 

Boston  Bank  v   Chamberlin,  60 

Boston  &  Wore.  R.  R.  Co.  v.  Rip- 
ley, 631,  822 
Bostwick  V.  Atkins,  60 

V.  Frankficld,  476,  495,  591 

Botts  r.  Armstrong,  1196 

Boucher  v.  Van  Buskirk,  149 

Boudette  ?j.  Pierce,  .345 

Boulton  I'.  Blake,  410,  415,  629 

Bowditch  i\  Ciiickering,  224 

Bowe  V.  Hunking,  282,  283,  913 

Bowker  ;'.  Bradford,  71 

Bowlsby  V.  Speer,  1081 

Bowser  v.  Scott,  658 

Boyce  v.  Bakewell,   262,205,  388,  418 

1?.  Brown,  1070 

Boyd  V.  iMc{;oml)S,  693,  619 

Boynton  v.  Morgan,  032 

Braddee  v.  Wiley,  404,  435 

Bradish  v.  Sclieiick,  203,  204 


TABLE   OF   AMERICAN   CASES. 


XI 


PAGK 

Bradley  v.  Covcl, 

530 

V.  (loicouria, 

481,  (531 

V.  PiKgot, 

(550 

V.  liici', 

1083 

Brady  v.  I'eiper, 

274 

Brakely  v.  Sliarp, 

1090 

Branger  v.  Maiiciet, 

283,  284 

Braxon  v.  Bresslcr, 

1083 

Brazier  v.  Ansley, 

203 

Breed  v.  Pratt, 

77 

Breher  v.  Keesc, 

224 

Brennan  v.  .lack, 

830 

Brewer  v.  Dyer, 

387 

V.  Harris, 

631 

Brewing  v.  Berryman, 

86,  211,  218, 

235,  351 

Brewster  v.  Miller, 

283 

Brick  V.  Middleton, 

119G,  1275 

Brick's  Estate, 

(58 

Bridger  v.  Pierson, 

291 

Bridgers  v.  Dill, 

593,  (548 

Bridgham  v.  Tileston, 

387 

Briggs  i;.  Hall, 

(530 

V.  Large, 

691,  719,  730 

V.  Oaks, 

207 

Brigham  v.  Hawley, 

•  822 

V.  Smith, 

1072 

V.  Wheeler, 

65 

Brinley  v.  Mann, 

24 

Brinton  v.  Datas, 

434 

Brisban  v.  Boyd, 

170 

Brisben  v.  Wilson, 

719,  730 

Brookline  v.  Mackintosh,                108(5 

Brooks  V.  Whcelock, 

144,  152 

Brown  v.  Alfriend, 

822 

V.  Duncan, 

709 

V.  Fay, 

694 

.    V.  Jaquette, 

205 

V.  Keller, 

500 

V.  Maine  Bank, 

247 

V.  Newbold, 

917 

V.  Sims, 

G91 

V.  Thurston, 

290,  1145,  114(5 

Brownell  v.  Welch, 

542 

Brudenell  v.  Vaux, 

531 

Bryant  v.  Tucker, 

475,  500,  1195 

Buck  V.  Dowley, 

1(54 

Buckley  v.  Russell, 

154,  660 

Bucknam  v.  Backnam 

19 

Buckner  v.  Jewell, 

445,  446 

Buckwalter  v.  Klein, 

459,  462,  591 

Buffalow  V.  Buffalow, 

77 

Bnkup  V.  Valentine, 

711 

Bulkley  v.  Dolbeare, 

1118 

Bullock  r.  Wilson, 

1082 

Bulmer  v.  Bruniwell, 

§46,  347 

Bun  ton  v.  Richardson, 

373 

Burbank  v.  Dyer, 

354 

Burchard  v.  Rees, 

709 

Burden  v.  Thayer, 

388,  404 

PAGB 

Burdick  v.  Cheadle,  1128 

Burnell's  Estate,  45!) 

Burns  v.  Bryan,  82 

V.  Cooper,  205,  404 

V.  Cox,  459 

Burnside  r.  Twitchell,  956 

Burrill  v.  Naiiant  Bank,        26,  27,  28 

Burroughs  r.  Clancey,  823 

V.  Saterlee,  1094 

Burt  V.  State,  1275 

Bush  V.  Coles,  289 

Bussman  r.  (ianster,  1003 

Butler  V.  Church,  166 

V.  Kidder,  481 

1-.  Page,  955 

V.  l>eck,  1081 

Butterfield  r.  Baker,  290 

Butts  r.  Andrews,  178 

V.  Voorhees,  1274 

Byrne  v.  Van  Hoesen,  64,  67 

Cadwalader  v.  Tindall,  707 

V.  West,  77 

Cffisar  V.  Karutz,  283,  823,  914 

Cage  V.  Phillips,  823 

Cairo  &c.  R.  R.  Co.  r.  Wiggins 

Ferry  Co.,  358,  373 

Caldcleugh  v.  Hollingsworth,  730 

Caldwell  V.  Julian,  1133 

Calvert  v.  Bradley,  87,  424 

Camden  &  At.  R.  R.  Co.  v.  May's 

Landing, 
Cameron  v.  Todd, 
Campan  v.  Shaw, 
Campbell  v.  Arnold, 

V.  English, 

V.  Portland  Sugar  Co. 

V.  Proctor,  21,  22,  475,  500 

Can.  Perm.  Loan  &  Sav.  Soc,  87 

Canal  Bridge  v.  Gordon,  25 

Canal  Comm'rs  v.  People,  1061,  1082, 

1083 
Capen  v.  Peckliam,  954 

Cappes  V.  Sibley,  220 

Carey  v.  Richards,  353,  354 

Carhart  v.  Auburn -Gas  Co.,  1086 

Carl  V.  Lowell,  1132 

Carleton  &c.  R.  R.  v.  Grand  South 

Ry.  Co.,  28,  161 

Carlile's  Appeal,  461 

Carnavan  v.  (iray,  1132 

Carpenter  r.  Gillespie,  648 

V.  United  States,  383 

Carr  v.  (ieorgia  R.  R.,  950 

V.  Wallace,  1055 

Carrig  v.  Dee,  1074 

Carroll  v.  St.  John's  Society,  122 

Carson  v.  Blazer,  1082 

V.  Veitch,  837 

Case  V.  Haight,  289 


424, 


122 

817 

68 

1118 

67 

912,  1122 


TABLE   OF   AMERICAN  CASES. 


PAGE 

Casey  v.  Gregory,  404 

V.  Hanlon,  186 

Caswell  V.  Districh,  204,  206 

Cate  V.  Schaum,  719,  723,  724 

Cates  V.  Wadlington,  1082 

Cathcart  v.  Walter,  1196 

Caverliill  >:  Orvis,  209,  474,  539 

Central  Mills  v.  Hart,  202 

Cent.  Railroad  u.  Claghorn,  123 

Cent.  R.  R.  Co.  v.  Valentine,         1070 
Chadwick  v.  Woodward,  823,  919 

Chamberlain  r.  Heard,  648,  649 

Champlain  &  St.  L.  R.  R.  v.  Val- 
entine, 1083 
Chandler  v.  Thurston,  1145 
Chapman  v.  Gray,                 81,  82,  433 
V.  Kimball,  1083 
V.  Tlbbits,  68 
Chase  v.  McDonnell,                204,  205 
V.  Wingate,                                  230 
Chatfield  r.  Wilson,                         1094 
Cheney  v.  Newberry,                         155 
Cherry  v.  Stein,                                1074 
Chesley  v.  Welch,           358,  373,  1145 
Chicago  &c.  R.  R.  Co.  v.  Linard,    205 
Childress  r.  McGehoe,                   1197 
Childs  V.  Clark,                         262,  414 
Chiles  V.  Stephens,                           1196 
Chipman  v.  Emerie,  499, 619, 900, 1010 
V.  Martin,                                     709 
Chissom  v.  Hawkins,                         205 
Chretien  v.  Crowlej',                        348 
Christian  v.  Dripps,                           952 
Christopher  v.  Austin,     273,  630,  631 
(^hung  Yow  V.  Hoj)  Cliong,   3,  218,  551 
Churchill  v.  Merchants'  Bank,       531 
City  Chicago  r.  Laflin,                    1083 
City  Lowell  v.  Spa  aiding,              1128 
Glamorgan  v.  Lane,  60 
Clapp  r.  Paine,                                   473 
V.  Stoughton,  72 
Clark  V.  Clark,                                  165 
V.  Fraley,                                     658 
V.  Keliher,                                  549 
V.  Midland  Blast  Furnace  Co.,  283 
V.  Smith,                                      473 
V.  Stringfellow,                         1197 
Clarke  v.  Millwall  Dock  Co.,          690 
("larkson  r.  Skidmore,  87 
Clary  v.  Owen,                                    952 
Clason  V.  Bailey,                      149,  150 
(Cleaver  v.  Culloden,                          957 
Cleaves  v.  Foss,                                  150 
Cleris  r.  Ticman,                              1075 
Cleves  r.  Willoughby,      214,  283,  308 
Clinton  Wire  Go.  r.  Gardner,  358,  373 
Clf.ugh  V.  Ilosford,                            383 
Coale  V.  Han.  &  St.  Jo.  R.  R.  Co., 

935, 1126 
Cobel  V.  Cobcl,  404 


PAGE 

Codman  i-.  Hall, 

18 

V.  Jenkins, 

816 

Coe  V.  Wilson, 

290 

CofBn  V.  Lunt, 

352,  366 

Cohen  i-.  Dupont, 

630,  631 

V.  Kyler, 

958 

Cohn  V.  Smith, 

648 

Colburn  r.  Morrill, 

630,  632 

Cole  V.  McKey, 

284 

V.  Roach, 

957,  958 

Coleman  v.  Bunce, 

825 

V.  Keddick, 

816 

Coles  V.  Marquand, 

682 

CoUamer  i\  Kelley, 

414 

Collins  V.  Hasbrouck,  414,  1010,  1195 
V.  Prentice,  1072 

Colrick  V.  Swinburne,  1084 

Colton  V.  Rookledge,  160 

Comer  v.  Sheehan,  85,  86,  404 

Comm'rs  Canal  Fund  v.  Kemp- 
shall,  1082,  1083 
Connnonwealth  v.  Chambre,  531 
V.  Chapin,  ■                     1061,  1082 
V.  Conway,                                 1196 
V.  Dudley,                                1196 
V.  Rees,                           1196,  1275 
V.  Shattuck,                   1196,  1274 
Concord  Bank  v.  Bellis,  73 
Condon  v.  Butt,                354,  358,  373 
Gongdon  r.  Brown,                            552 
Conklin  v.  White,                              481 
Connah  v.  Hale,                                  691 
Conn.  Mut.  Ins.  Co.  v.  U.  S.,  86,  113, 
481,  632 
Connery  ?'.  Brooke,                          1070 
Connor  v.  Bradley,                    499,  619 
Conrad  r.  Smith,                                  415 
Conro  i\  Port  Henry  Iron  Co.,  26,  28 
Conway  v.  Starkweather,       354,  358, 
373,  709 
Cook  V.  Bisbee,                       252,  476 
V.  Champ.  Trans.  Co.,             1126 
V.  Cook,                            2,  22,  475 
V.  Soule,                                     826 
Cooke  i-.  Thornton,                           935 
Coomb's  Devisees  v.  Branch,  459,  462 
Coon  V.  Brickett,                               515 
Cooney  >-.  Hayes,                     387,  413 
Cooper  )•.  McGrew,                           204 
Goppel's  Estate,                                  462 
Corliss  V.  McLagin,                          960 
Cornell  r.  Dean,                                 205 
V.  Moulton,                         246,  247 
Corper  r.  Johnson,                             951 
Gorrigan  r.  Kiernan,                     65,67 
Cosby  r.  Shaw,                                     901 
Goulson  r.  Whiting,                           481 
County  of  Huron  r.  Kerr,                165 
Gourrier  r.  Harker,                            543 
Gouts  I'.  Spivey,                                048 


TABLE   OF   AMERICAN    CASES. 


XIU 


PAGE 

Cox  V.  Fenwick,  414,  415 

V.  Tlic  State,  108:J 

Craig  V.  Leslie,  120 

V.  Meriine,  658 

Cram  v.  Dresser,  822 

Crawford  v.  Bugg,  266,  415 

V.  Loiigstreet,  25,  122 

Creech  v.  Crockett,  474 

Crenshaw  v.  Crenshaw,  958 

Cresinger  v.  Lessee  of  Welch,  60 

Cresson  v.  Stout,  960 

Crews  V.  Mountcastle,  229 

V.  Pendleton,  289 

Critchfield  v.  Remaley,  354,  358,  373 

Crocker  v.  Hill,  912 

Croff  V.  Ballinger,  1197 

Croinelien  v.  Brink,  555 

Croniie  v.  Hoover,  955 

Crommelin  v.  Theiss,  830 

Crooks  V.  Dickson,  816 

Crosby  v.  Loup,  404,  406,  459 

Cross  V.  De  Valle,  120 

V.  Kitts,  1094 

V.  Marston,  954 

V.  Upson,  388 

Crossfield  o.  Gould,  164 

Crouch  V.  Wabash,  St.  L.  &  Pac. 

Ry.  Co.,  515,  1010 

Crowe  ('.  Wilson,  5,  578,  930 

Crowningshield  v.  Crowningshield,  77 

Cruise  v.  Cliristopher's  Adra'r,  77 

Crump  V.  Morrell,  823,  914 

Cubbins  v.  Ayres,  952 

Culver  V.  Smart,  1 133 

Cummings  v.  Winters,  552 

Cummins  v.  Scott,  1197 

Cunningham  v.  Baker,  205 

V.  Baxley,  462 

V.  Blake,  178 

V.  Holton,           352,  366,  387,  413 

V.  Horton,  367,  474 

V.  Lyon,  383 

V.  Pattee,         4,  17,  174,281,578 

Curl  V.  Lowell,  367,  544 

Curran  v.  Holyoke,  161,  165 

Currier  v.  Earl,       367,  475,  500,  1195 

V.  Perley,  352,  366,  530 

Curtis  c.  Galvin,     352,  366,  475,  1132 

V.  Herrick,  401    ' 

V.  Hoyt,  957    I 

V.  Treat,  366  • 

Cutting  V.  Dana,  149,  170,  272 

Dainty  v.  Vidal,  188 

Dakin  v.  Allen,  382 

Dame  v.  Dame,  957 

Danforth  v.  Schoharie,  25 
Daniels  v.  Pond,              475,  929,  1119 

V.  Richardson,  72,  73 

D'Aquin  v.  Armant,  434 


PAGE 

Darling  v.  Kelly,  205 

Darrak  v.  Baird,  952,  955 

Daubuz  (;.  Lavington,  87 

Dauphinais  r.  Clark,  '              ()()3 

Davidson  r.  Phillips,  1197,  1275 

Davies  v.  Davies,  910 

Davis  V.  Brocklebank,  1145,  114(i 

V.  Getchell,  1084 

V.  Lewis,  52 

V.  Meyers,  648 

V.  Morris,  20,  414 

V.  Moss,  955 

V.  Murphy,  474,  539 

V.  Old  Col.  Railroad,  28,  122 

V.  Parker,  158,  181 

V.  Taylor,  952 

V.  Thompson,  352,  544,  1145, 1140 

Davis'  Adm'r  r.  Smith,  642 

Dearborn  I'.  Wellman,  1118 

Deaver  v.  Rice,  205 

De  Bow  V.  Titus,  1145 

Decker  v.  Livingston,  72 

De  Forest  v.  Byrne,  1018 

Degraffenreid  v.  Scruggs,  958 

Delaney  v.  Root,  204,  1145 

Delano  i-',  Montague,  358,373 

Delashman  v.  Berry,  585 

De  Luze  v.  Bradbury,  1091 

Demainville  i\  Mann,  388,  425 

Demarest  t.  WiUard,  265,  406 

De  Mott  V.  Hagerman,    203,  204,  206 

Den  V.  Adams,  358,  373 

V.  Blair,  530 

V.  Blake,  530 

Dennett  v.  Penobscot,  383 

Dennis  v.  Dennis,  52 

Dennison  v.  Kennedy,  161 

V.  Lee,  816 

V.  Smith,  1196 

Dent  V.  Hancock,  720,  723 

De  Pere  Co.  v.  Reynen,  410 

Depuy  V.  Silver,  825 

Despatch  Line  v.  Bellamy  Man. 

Co.,  955, 959 

Dewey  v.  Latson,  88 

V.  Payne,  388 

De  Witt  V.  Pierson,  631,  632 

Dexter  v.  Manley,  130,  281 

De  Young  v.  Buchanan,  359 

Dibble  v.  Dibble,  67 

Dickerson  v.  Chrisman,  166 

Dickinson  v.  Worcester,  1081,  1091 

Dickson  v.  CoviTt,  160 

Dillingham  v.  Jenkins,  81,  82,  402 

Dil worth  v.  Fee,  1196 

Dimmock  r.  Daly,  822 

Dimock  v.  Van  Bergen,  359 

Dinehart  v.  Wilson,  200 
Dingley  v.  Buffum,           387,  413,  955 

Directors  v.  IMcBride,  272 


XIV 


TABLE   OF   AMEPwICAN   CASES. 


PAGi; 

Disselhorst  r.  Cadogan,  404 

District  of  Corwin  v.  Moorehead,  957 

Dixon  V.  Merritt,  61 

V.  Nic'colls,  205,  404 

Doane  v.  Badger,  19 

Dodge  r.  Lambert,  1018 

Doe  V.  Horniblea,  119 

V.  Kuffin,  354 

(I.  Andrews  i'.  Taj'lor,  73 

(/.  Beiinet  v.  Murdock,  289 

d.  Cliff  r.  Connaway,  216 

d.  Heatlicote  v.  Hughes,      2,  354 

d.  Hovle  V.  Stowe,  61 

d.  Jarvis  v.  M'Cartli3%  404 

d.  Kemp  v:  Garner,  383 

d.  Macqueen  v.  Hunter,   354,  593 

d.  Mayor,  &c.,  of  St.  John  i\ 

Roe,  498.  1195 

d.  Parkinson  v.  Haubleman, 

220,  351,  473,  539 

d.  Pennington  r.  Tauiere,        354 

d.  Peters  v.  Pelletier,       354,  359 

(/.  Smith  r.  Snarr,  87 

Donaldson  v.  Likens,  547 

Donkersley  r.  Levy,  482 

Doolan  v.  McCauley,  462 

Dorrance  v.  Jones,  388,  418 

Dorwm  i'.  Potter,  825 

Dotey  V.  Gillett,  481 

Doty  r.  Burdick,  600 

Douglass  V.  Geiler,  2 

I'.  Massie,  459 

V.  Murphy,  415 

V.  Spears,  149 

Doupe  V.  Genin,  283,  284 

Dove  V.  Dove,        *  387 

Downard  !•.  Groff,  86 

Drake  v.  Chicago  R.  R.  11 18 

V.  Cockroft,  822 

Drakford  -•.  Turk,  86 

Dubois  V.  K(  lly,  956 

I'.  Van  Orden,  817 

Ducey  Lumber  Co.  i*.  Lane,  350 

Dudding  v.  Hill,  831 

Duffield  r.  Whitlock,  144 

Duke  V.  Hague,  1",  130 

1'.  Harper,  353,  500 

Dumn  c.  Rothermel,  351 

Duini  I'.  Howard,  161 

(,-.  JalTray,  252 

V.  Rector,  25 

Dunne  t;.  Trustees  of  Schools,  542, 544 

DuMiiing  V.  Finson,  382,  1195 

Diiniiit  r.  I.Mddell,  1075 

Dunlin  V.  Hill,  59:5 

Durcl  V.  IJoisblanc,  1070,  1075 

Durfee  r.  Ohl  Col.&c.  R.  R.  Co.,     122 

Duryee  v.  Turner,  619 

Diistin  V.  Cowdrey,  11''3 

Dutton  V.  Colby,  300 


PAGB 

Dutton  V.  Gerrish,  282 

c.  Tracy,  1197 

Dwight  V.  Cutler,  350,  383 

Dwight  Print.  Co.  v.  Boston,         1086 
Dworak  v.  Graves,  205 

Dyett  V.  Pendleton,  273,  630,  631,  913 

Eagle  v.  Swayze,  284,  913,  917 

Eagle  Fire  Ins.  Co.  v.  Lent,  59 

Eakin  v.  Brown,  913 

Fames  v.  Mavo,  648 

Earl  V.  De  Hart,  1080 

East  Aug.   Ky.  Co.   v.  East   Co. 

Ry.  Co.,  122 

East  Co.  Ry.  Co.  r.  Ilawkes,  122 

Easton  v.  Mitchell,  252,  475 

Eaton  V.  Dugan,  816 

V.  Jaques,  87,  424 

Eberts  r.  Fisher,  19,  498,  1004 

Ecke  V.  Fetzer,  264,  266,  268 

Ecker  v.  C.  B.  &  Q.  R.  R.  Co.,        418 

Edgarton  v.  Page,  632,  822 

Edwards  c.  Gale,  272,  273,  911 

V.  Hale,  358 

V.  N.  Y.  &  Harlem  R.  R.  Co.,  283 

Effinger  v.  Lewis,  263,  476 

Ela  r.  Card,  73 

Eliason  v.  Henshaw,  170 

Elliott  V.  Aiken,  481,  632,  822 

V.  Stone,  474,  539 

Ellis  r.  McCorraick,  274 

V.  Paige,  352,  366,  367,  544, 

1145, 1146 

Elwes  r.  Britrg  Gas  Co.,  229,  289 

V.  Mawcs,  955,  956 

Ely  V.  Ely,  1003 

V.  Sprague,  123 

Emeret's  Estate,  462 

Emerson  v.  Spicer,  65,  68 

Emmes  v.  Feeley,  476 

Ennnons  v.  Scudder,  359 

English  V.  Kev,  619 

Enrich  v.  Riciiter.  1080 

Enright  v.  O'Loghlcn,  8,  202 

Ensminger  i\  The  People,  1083 

Kplev  r.  Eubanks,  404 

Erb  V.  Sadler,  693 

Erwin  v.  Olmsted,  19 

Esdon  V.  Colburn,  205 

Estep  V.  Estej),  284 

Estes  V.  Kelsev,  1132 

Estey  r.  Baker,      373,  475,  500,  1132 

Eten  V.  Luyster,  491 

Etheridge  v.  <  »sl)orn,  631,  824 

Evans  v.  Hastings,  639 

V.  Herring,  709 

Everett  r.  Neff,  710 

Ex  pnrtp.^)i'ni\,  247 

Faxon,  446 

Fuller,  440 


TABLE    OF    AMERICAN    CASES. 


XV 


PAGE 

PAOK 

Ex  parte    Graffenreid, 

67 

Foote  V.  Colvin, 

203,  204 

Houghton, 

445,  446 

Forbes  v.  Connolly, 

186 

Mclican, 

87 

V.  Smiley, 

481 

Forge  V.  Reynolds, 

470 

Faiinnestock  v.  Faustenaucr,        530 

Fort  V.  Brown, 

289 

Failing  v.  Schenck, 

6,  202,  594 

Ft.  Dearborn  Lodge  v. 

Klein,      1133, 

Fairbanks  v.  I'liclps, 

130,  210 

1197 

V.  Williamson, 

266 

Foss  V.  Crisp, 

120 

Fairfax     Devisee     v. 

Hunter's 

Foster  V.  Essex  Bank, 

28 

Lessee, 

120 

V.  Kclsey, 

1196, 1275 

Fairis  v.  "Walker, 

958 

V.  Peyser, 

282,  283 

Faler  v.  Mcllae, 

81,  82,  462 

V.  Wheeler, 

155 

Farley  v.  Craig, 

425 

Fougera  v.  Cohn, 

220,  354 

V.  Thompson, 

406,  621 

Fowke  V.  Beck, 

383 

Farm.  &  Mech.  Bank  v. 

Ege,         404, 

Fowler  v,  Bott, 

642 

406,  435,  621 

V.  Hawkins, 

205 

Farmers'  Bank  v.  Leigh 

424 

V.  Shearer, 

73 

V.  Mut.  Asso,  Soc.  &c.,     262,  404 

Fox  i».  Corey, 

830 

Farmers'  Loan   &c.  Co. 

V.  St.  Jo. 

V.  Southack, 

119 

&  Den.  City  R.  R.  Co. 

220 

Franklin  v.  Brown, 

481,  823,  919 

Farquhason  v.  Williamson,     IGl,  100 

Eraser  v.  Drynan, 

31,  130,  252, 

Farrar  v.  Chaiiffetete, 

951 

476, 1126 

Farrington  v.  Kimball, 

816 

?'.  McFatridge, 

719 

Farwell  v.  Easton, 

1018 

Frazier  v.  Hastier, 

1196,  1275 

Fenton  v.  Montgomery 

917 

Freeman  v.  Nichols, 

62 

Ferguson  i'.  Bell's  Adm'r,                  60 

V.  Underwood, 

74,  203 

V.  Savoy, 

203 

French  v.  Fuller, 

1118 

Ferrall  v.  Kent, 

204 

Eretton  v.  Karcher, 

719 

Fetters  v.  Humphrey, 

1070,  1072 

Frost  V.  Raymond, 

281 

Field  V.  Sehieffelin,' 

64,  67,  68 

Front  V.  Hardin, 

205 

Fife  V.  Irving, 

709 

Frue  V.  Houghton, 

149,  272 

Fifty  Associates  v.  Howland,  498, 1132 

Fry  V.  Jones, 

205,  658 

V.  Tudor, 

1074 

EuUam  v.  Stearns, 

955 

Files  V.  Magoon, 

935 

Fuller  V.  Ruby, 

631,  632 

Fillebrown  v.  Hoar, 

630,  821 

('.  Tabor, 

957 

Fiquet  v.  Allison, 

205 

Fulton  V.  Stuart, 

426 

First  Parish  in  Sutton  v 

.  Cole,         26 

Fish  V.  Dodge, 

1123 

Gaffield  r.  Hapgood 

958 

Fisher  i\  Lighthall, 

283 

Gage  V.  Bates, 

499,  619 

V.  MiUiken, 

642 

Galbraith  r.  Irving, 

387,  406 

V.  N.  Y.  C.  &  H.  R. 

R.  Co.,     122 

Gannon  v.  Hargadon, 

1081 

V.  Saffer, 

957 

Ganson  v.  Tifft, 

20,  414 

Fiske  V.  Framingham  Man.  Co.,   202, 

Gardiner  v.  Parker, 

956 

594 

Gardner  v.  Keteltas, 

281 

Fitchburg  &c.  v.  Melven,           4,  273, 

V.  Weaver, 

1072 

630,  821 

Garner  v.  Cutting, 

648 

Fitzgerald  v.  Beebe, 

030 

V.  Hannah, 

837 

Fitzhugh  V.  Wilcox, 

76 

Garvey  v.  Colcock, 

25 

Fitzpatrick  i'.  Childs, 

566 

Gasco  V.  Marshall, 

957 

Flagg  V.  Badger, 

5 

Gaskill  V.  Trainer, 

499, 619 

v.  Worcester, 

1081 

Gas  Light  &  Coke  Co. 

V.  Towse,     161 

Fleckner  v.  U.  S.  Bank, 

24,25 

Gates  ?'.  Green, 

348,  642 

Fletcher  v.  M'Farlane, 

262,  265, 

Gault  V.  Jenkins, 

1132 

415,  816 

Gavitt  V.  Chambers, 

1083 

V,  Phelps, 

1083 

Gayetty  v.  Bethune, 

1072 

Flood  I'.  Flood, 

373,  831 

Gay,  Petitioner, 

81,  82,  462 

Floyd  V.  Storrs, 

191 

V.  Kingsley, 

71 

Folsom  V.  Moore, 

957 

Gee  V.  Young, 

1145 

Folts  V.  Huntley, 

5,  253,  476 

Geer  r.  Fleming, 

205 

Foltz  V.  Prouse, 

404,  459 

Geiger  v.  Braun, 

353 

XVI 


TABLE   OF   AINIERICAN   CASES. 


PAGB 

Geiger  v.  Green,  149 

Geiger's  Adm'r  v.  Harraan's  Ex'r,  650 

Genau  v.  Dist.  of  Columbia,  916 

Genet  v.  Tallmadge,  66,  67 

Gerber  v.  Grabel,  1074 

German  v.  Machin,  149 

Gibbons  v.  Dayton,  639 

Gibbs  V.  Williams,  1081 

Gibson  v.  Farley,  459 

V.  Mullican,  420 

V.  Perry,  642 

V.  Tong,  1197 

Gilbert  v.  Port,  1003 

r.Wasli.  City  fec'R.  R.  Co.,  99, 100 

Gildersleeve  v.  Ault,"  690 

Giles  1-.  Hays,  709 

Gilliooley  r.  Washington,  631 

Gill  V.  Bicknell,                 144,  150,  168 

V.  Middleton,  224,  284 

r.  Pinney's  Adm'r,  459 

Gillespie  v.  Thomas,  816 

Gilham  v.  Madison  R.  R.  Co.,        1081 

Gilliam  v.  Tobias,  694 

Gillis  V.  Morrison,  282,  481 

Gilniore  v.  Pope,  123 

Gilmour  v.  Adm'rs  of  Kay,  120 

Glenn  v.  Howard,  440 

V.  Thompson,  549 

Globe  Marble  Co.  v.  Quinn,  952 

Godlcy  V.  Hagerty,  1122 

Goldsmith  v.  Wilson,  426 

Goodenow  v.  Allen,  366,  367 

V.  Kilby,  382 

V.  Pike,  •     1195 

Goodfellow  V.  Noble,  351,  352 

Gordon  v.  Preston,  123 

V.  Sims,  150 

V.  Stockdale,  205 

Gore  V.  Brazier,  630 

Gormlcy  r.  Sanford,  1081 

Gould  V.  Boston  Duck  Co.,  1084 

V.  Thompson,  382,  383 

Govcrneur's  Ileirs  v.  Robertson,     120 

Grannis  v.  Clark,  281 

V.  Delvin,  4 

Grant  v.  Marshall,  552 

V.  Whitevvell,  648 

Grau  V.  McVicker,  308 

Graves  v.  Bordan,     273,  281,  283,  475 

V.  Porter,  415 

Gray  v.  Fineli,  1196 

V.  MoLelian,  957 

i\  Rawson,  082 

Greason  v.  Koteltas,  51,  52 

Gt.  North.  Ry.  Co.  li.East  Count. 

R.  Co.,  122 

Green  v.  Green,  81,  82,  462 

V.  MasKic,  404,  459 

Grecnby  r.  Wileoi-ks,  270 

Grecnleaf  v.  Allen,           388,  415,  817 


PAGB 

Greenleaf  r.  Francis,  1094 

Greenvault  v.  Davis,  631 
Greer  v.  Wroe,             1196,  1274,  1275 

Gregg  V,  Currier,  459, 461 

Grier  v.  Cowan,  658 

Griffin  r.  Ransdell,  955,  957 

I'.  Rochester,  350 

Griswold  v.  Butler,  76 

V.  Frink,  459 

Gross  I'.  Fowler,  531 

Grosz  r.  Jackson,  952 

Groustra  v.  Bourges,  475 
Grove  v.  Hodges,              214,  272,  308 

Gruenewald  i'.  Schaales,  474,  541 

Grundy  v.  Martin,  17,  549 

Guest  V.  Opdyke,  204 

V.  Reynolds,  1074 

Gunn  V.  Sinclair,  474,  541 
Guthman  v.  Castleberry,         825,  912 

Guthrie  r.  Jones,  951,  952 

Guy  V.  Rankin,  690 

Hackett  v.  Amsden,  954,  956 

Hadden  v.  Knickerbocker,  694 

Hagan  v.  Gaskill,  491 

Hague  V.  Harmony  Grove  Ceme- 
tery, 178 
Haight  V.  Keokuk,                            1082 
Hale  V.  Burton,                                   650 
Haley  v.  Boston  Belting  Co.,           308 
Hall  V.  Comfort,  87 
V.  Jacobs,                                      831 
V.  Myers,                                      354 
V.  Wadsworth,                     353,  354 
Hallett  V.  Wylie,       154,  155,  642,  816 
Halliday  v.  Marshall,                        387 
Halligan  v.  AVade,             630,  631,  913 
Ham  V.  Ham,                                         67 
Hamblett  v.  Bennett,                         203 
Hamilton  v.  Huntley,               954,  959 
V.  Lane,  71 
V.  Read,                              414,  495 
Hammon  v.  Douglass,     212,  352,  353, 
354,  359,  366 
Ilanchett  v.  Whitney,               354,  530 
Ilandershott  r.  Calhoun,                    404 
Hankins  v.  Kimball,                          401 
Ilannen  v.  Ewalt,                 69,  266,  416 
Hansen  ?•.  Dennison,                          206 
V.  Meyer,                             265,  270 
Hardin  v.  Major,                               531 
V.  Pulley,                                    350 
Hare  v.  Celey,                   203,  204,  206 
V.  Pearson,                                   203 
Ilarkness  v.  Sears,                              956 
Harlan  v.  Lehigh  Coal   &  Nav. 

Co.,  283 

Harley  v.  Weatliershee,  684 

Harris  v.  Gillingham,  n;)2 

Harrison  v.  Ricks,  204, 205,  200 


TABLE   OF   AMERICAN   CASES. 


XVU 


PAGE 

Harrison  v.  Smith,  955 

Harrow  v.  Baker,  1276 

narrower  v.  Heath,  204,  20(5 

Hart  ;;.  Baker,  205 

V.  Hyde,  1118 

Hartley  v.  Jarvis,  711 

Haseltine  v.  Ausherman,  648 

Haslage  v.  Krugh,  404,  459 

Hasty  V.  Wheeler,  930 

Hatch  V.  Sykes,  86 

Hatohell  v.  Kimbrougli,  205 

Hauck  V.  Stauffer,  461 

llauxlmrst  v.  Lobree,  373 

V.  Somers,  473,  540 

Haverstick  v.  Sipe,  1075 

Hawes  v.  Shaw,  632 

Hayden  v.  Bradley,  912 

V.  Dutcher,  1074 

V.  Lucas,  168 

V.  Madison,  25,  29 
t'.  Middlesex  Turnpike  Co.,       25 

V.  Shiff,  434 

Hayes  v.  Ferguson,  1003 

Hayiier  v.  Smith,  630 

Haynes  v.  Bennett,  61 

Hays  I'.  Doane,  958 

Hayward  v.  Hayward,  72 

Hazeltine  v.  Colburn,  352,  366 
Hazlett  V.  Powell,           283,  642,  1074 

Head  v.  Prov.  Ins.  Co.,  25 

Heald  v.  Build.  Ins.  Co.,  205,  290 

Heath  v.  William,  2 

Hecht  V.  Dettman,  86 

Iledderich  v.  Smith,  955 

Hedges  v.  Riker,  51,  52 

Hcffner  v.  Lewis,  952,  959 

Heinphill  v.  Flynn,  358 

Helser  v.  Pott,  657 

Hendricks  v.  Judah,  446 
Hendrickson  v.  Hendrickson,       1196, 

1274 

Hendrix  v.  Hendrix,  459. 

Hendy  v.  Dinkerhofl,  959 

Henry  v.  Clark,  1196 

V.  Jones,  247 

Herr  v.  Slough,  935 

Herrell  v.  Sizeland,  366,  381,  542,  544 

Herron  v.  Gill,  648,  694 

Hesseltine  v.  Seavey,  481 

Hetrich  v.  Deachler,  1084 

Hexter  v.  Knox,  912 

Hey  V.  Bruner,  952 

V.  McGrath,  353 

Hicks  V.  Chapman,  68,  77 

V.  Martin,  426 

V.  SiUiman,  1081 

Highley  v.  Barron,  60,  61 

Hilborne  v.  Brown,  952,  957 

llilbourn  v.  Fotrg,  2,  22 

Hildreth  v.  Camp,  1196 


Hill  V.  Bishop, 

V.  Sewald, 

V.  Slmltz, 

V.  Wentworth, 

V.  Woodman, 
Hilliard  v.  Gemmel, 
Hilsendegen  r.  Sciieich, 
Hingham  v.  Sprague, 
Ilintze  V.  Thomas, 
Hoag  V.  Carpenter, 
Hoagland  v.  Crum, 
Hobbs  V.  Davis, 
Hodges  V.  Howard, 


PAGE 

273 

951 

233 

954,  955 

284,  816,  930 

354,  359 

297,  499 

29 

415 

482 

8,  8:U>  ■ 

648 

146, 191 

Hodgkins  v.  Jordan,  1190,  1275 

V.  Price,  1276 

Hogsett  I'.  Ellis,  350,  383 

Holbrook  i*.  Chamberlin,  959 

V.  Young,  631 

Holderness  v.  Lang,  930 

Holland  v.  Brown,  650 

Hollenback  (,-.  McDonald,  81,  235 

Ilolley  V.  Young,  154,  348,  585 

IloUis  V.  Pool,  474 

Holmes  v.  HoUoway,  1197,  1276 

V.  Seely,  64,  68,  1072 

V.  Tremper,  956 

Homan  v.  Liswell,  247 

Hooker  v.  Cunimings,  1061,  1082 

Hopkins  v.  Calloway,  1196,  1197,1275 

V.  Gilman,  147,  158,  578 

V.  Hopkins,  406 

Horn  V.  Bowen,  462 

Horner  v.  Leeds,  5,  252 

Hoskins  v.  Rhodes,  205 

Ilougan  V.  Mil.  &  St.  Paul  R.  R.,  1094 

Houghton  V.  Moore,  231 

Houghwout  i\  Boisaubin,  17C 

House  V.  Metcalf,  1123 

Howard  v.  Doolittle,  283 

V.  Merriam,  475 

V.  Murphy,  822 

V.  Ransom,  831 

Howe  ('.  Howe,  76 

Howell  V.  M'Coy,  1086 

V.  Ripley,  88 

Howe  Machine  Co.  r.  Sloan,  691 

Howland  v.  Coffin,  404,  817 

Iloyt  V.  City  of  Hudson,  1080 

i\  Hilton,  Cm 

V.  Stoddard,  445 

I'.  Wilkinson,  62 

H.  R.  E.  B.  B.  Asso.  v.  Cochran,    648 

Hubbard  v.  Goodwin,  120 

?'.  Town,  1074 

Hubbell  V.  E.  Cambridge  Five 

Cent  Sav.  Bk.,  951 

Huckabee  v.  Billingsly,  52 

Huff  V.  Shepard,  144,  147 

Hughes  I'.  Holmes,  31 

^'.  Vandstone,  283,286,917 


XVIU 


TABLE   OF   AMERICAN   CASES. 


PAGE 

Hughes  V.  Young, 

837 

Hughes'  Minors'  Appeal, 

68 

Hull  V.  Burns, 

900 

Humplirey  c.  Wait, 

284, 913 

Humphries  r.  Humphries, 

353 

,366,544 

Humphrys  v.  Newman, 

956 

Hunt  V.  Aniidon, 

837 

r.  Bailev, 

359 

r.  Danforth,        264,266, 

268,  416 

V.  Gardner, 

816 

V.  Holden, 

531 

V.  Morton, 

354 

V.  Spencer, 

160 

V.  Warnickes'  Heirs, 

119 

Hunter  i-.  lleiley. 

824 

V.  Whitfield, 

684 

V.  Whitman, 

648 

Hurd  V.  Gushing, 

252,  476 

V.  Davis, 

691 

Hurley  v.  M'Donell, 

209,  211 

Hurst  V.  Rodney, 

817 

Hutchins  r.  Shaw, 

956 

Hutchinson  v.  Boulton, 

161,  186 

Huth   V.   Carondelet    M. 

Ey.  & 

Dock  Co., 

60 

Huyser  v.  Chase,       353, 

362, 

474,  541 

Hyatt  V.  Wood, 

1132 

III.  Land  &  Loan  Co.r.Beem,  61,62 
Ind.  &c.  R.  R.  Co.  v.  Cleveland 

R.  R.  Co.,  426 

Ingraham  r.  Wilkinson,  1082 

Inlibts.  of  Ahia  c  Plummer,  150 

Inlihts.  of  liarnstable  v.  Thacher,  350 
Inhbts.  of  Deerfield  v.  Arms,  1082 
inhbts.  of  Franklin  v.  Fisk,  1081 

Inhbts.  of  Hingham  v.  Spraguc,    130, 

1118 

Inman  v.  Camp,  141 

In  re  Bowes,  82,  464 

Commercial  Bulletin  Co.,  445, 446 

Dowd,  443 

Frynan's  Estate,  678 

Haisley,  264,  266,  268,  416 

Hamburger  &  Frankel,  445 

Ives,  445 

Kniglit,  82 

Laurie,  445 

Lucius  Hart  Man.  Co.,  445 

Merrifield,  446 

Rose,  445 

Ten  Eyck,  445,446 

Walton,  445 

Wasld)urn,  445 

Weill),  446 

Wheeler,  445 

Willis,  375 

Ins.  Co.  V.  Nat.  Bank,      353,  354,  359 

Iron  M.  &  H.  R.  R.  v.  Jolmson,     1 197 

Irvine  v.  Irvine,  60 


Irving  V.  Thomas, 

Ives  V.  Ives, 

V.  Van  Auken, 
V.  Van  Epps, 


PAGE 

348,  593 

1132 

291 

825 


Jackmon  v.  Arlington  Mills,  1086 

Jackson  v.  Baker,  549,  1195 


Beach, 
V.  Bradt, 
I".  Brownell, 
I'.  Brownson, 
V.  Bryan, 
V.  Burchin, 
V.  Carpenter, 
r.  Chase, 
'.'.  Collins, 
V.  Delacroix, 
V.  Dunlap, 
V.  Fitz  Simmons, 
V.  Fuller, 
V.  Gardner, 
V.  Green, 
V.  Harrison, 
V.  King, 
i\  Kisselback, 
V.  Langhead, 
V.  Lawrence, 
V.  Lunn, 
V.  M'Leod, 
V.  Odell, 


120 

353,  366,  367,  544 

205 

930 

530,  544 

61 

61 

86 

499,  500,  508 

154,  155 

245 

120 

86 

290 

120 

426,  498,  499, 619 

77 

154 

87 

289 

119,  120 

373,  473,  540 

481 


V.  Parkhurst,   373,  473,  540, 1195 


V.  Rhipps, 

V.  Pierce, 

V.  Rogers, 

V.  Rowland, 

V.  Silvernail, 

V.  Swart, 

r.  Topping, 

V.  Vincent, 

V.  Vredenburgh, 

V.  Wheeler, 
Jacobs  V.  Peterborough, 
Jafl'e  I',  llarteau, 
James  r.  Beesley, 
Janes  v.  Jenkins, 
Jaques  V.  Gouhl, 
Jarchow  r.  Pickens, 
Jarvis  v.  Hamilton, 
Jean  r.  Spurrier, 
Jeffries  v.  Jeifries, 
Jenkins  v.  Eldredge, 
Jennings  v.  Collins, 

V.  McConib, 

)'.  Itobertson, 
Jewett  r.  I'artridge, 
Jimison  r.  Reifsneider, 
Johnson  v.  Black, 

r.  Ciirter, 

r.  Dixon, 

V.  Emanuel, 


245 

164 

5,  367,  530,  542 

86 

426,  498 

291 

297,  498 

500 

64,  68 

202,  5i)4 

164,  165 

283 

461 

1075 

816 

648 

1275 

721 

178 

154 

69 

214 

166 

952 

082 

719 

68 

017 

648 


1197 


TABLE   OF  AMERICAN   CASES. 


XIX 


PAGE 

Johnson  v.  Hannahan, 

1182 

V.  Ilartshorne, 

476 

V.  Hoffman, 

204 

V.  M'Leod, 

1195 

V.  Owens, 

709 

V.  Stevens,' 

17 

V.  The  Canada  Company,        165 

V.  Wiseman, 

958 

Johnston  v.  Bates, 

415 

V.  Hargrove, 

498,  619 

V.  McLellan, 

358 

V.  Riddle, 

85,86 

Johnstone  v.  Milling, 

912 

Jones  V.  Goldbeck, 

693 

V.  Gundrim, 

658 

V.  Marey, 

211 

V.  Percival, 

1070 

V.  Thomas, 

86 

V.  Todd, 

817 

V.  Ward, 

65,  66,  68 

V.  W.  St.  L.  R.  Co. 

1080 

Joplin  V.  Johnson, 

85,  86 

Jordan  r.  Staples, 

200,  1118 

Journeay  v.  Brackley, 

82 

Joy  V.  McKay, 

474 

Joyce  V.  De  Giverville, 

284 

Judge  V.  Piske, 

709 

Junkerman  v.  Bovee, 

223,  482 

Kaatz  v.  White, 

211 

Kabley   v.    Worcester 

Gaslight 

Co., 

154 

Kahn  ?'.  Love, 

283 

Kamerick  v.  Castleman, 

204 

Karns  (;.  Mc Kinney, 

683,  691 

Kaufman  r.  Myers, 

658 

Keating  ?'.  Condon, 

462 

V.  Moises, 

474 

Keats  V.  Hugo, 

1074 

Keay  v.  Goodwin, 

19 

Keene  v.  Schnedler, 

1196 

Keiper  v.  Klein, 

1075 

Keller  v.  Weber, 

719,  730 

Kelley  v.  Kelley, 

382 

Kelly  V.  Dunning, 

1091 

V.  Harrison, 

120 

V.  Weston, 

204 

Kelso  V.  Kelly, 

147 

Kendall  v.  Garland, 

816 

V.  Miller, 

60 

V.  Moore, 

359 

Kennard  v.  Brough, 

956 

Kent  V.  Waite, 

1069 

V.  White, 

235 

Kerr  v.  Bearinger, 

476 

V.  Bell, 

61 

V.  Clark, 

212,  351,  352 

V.  Day, 

266 

V.  Merchants'  Ex.  Co.,     273,  475 

V.  Sharp, 

719 

PAGE 

Kerr  v.  Shaw,      '  631 

Kessler  v.  M'Conachy,  683,  821 

Keycs  v.  Hill,  17,  350,  831 

Kidder  i'.  Hunt,  164 

Kidwell  v.  Kidwell,  461 

Kieffcr  v.  Inihoff,  1070 

Kiernan  i-.  Germain,  825 

Kilburn  v.  Ritchie,  383 

Kimball  v.  Grand  Lodge,  631 

V.  Lam  son,  531 

V.  Sumner,  404,  459 

King  V.  Connolly,  552 

V.  Davis,  350 

V.  Foscue,  8,  1145 

V.  King,                 '  1082 

V.  Miller,  1074 

King's   Adra'r  v.   St.  Louis  Gas 

Co.,  1196 

Kingsbury  v.  Westfall,  642 

Kittredge  v.  Peaslee,  831 

V.  Woods,  230 

Kleber  v.  Ward,  683 

Klein  v.  Gehrung,  1074 

Kline  i\  Becbe,  60 

Knerr  i\  Bradley,  476 

Koob  V.  Ammann,  205 

Koplitz  i\  Gustavus,  351 

Kramer  i\  Cook,  5,  585 

Krevet  v.  Meyer,  1196 

Krueger  v.  Ferrant,  284 

Kutter  V.  Smith,  957 

Lacy  v.  AVeaver,  205 

Laidlaw  v.  Taylor,  958 

Lake  v.  Gaines,  648 

Lamb  v.  Rickets,  1082 

Lamberton  v.  Stouffer,  205 
Lametti  v.  Anderson,       266,  268,  416 

Lamphere  v.  Lowe,  957 

Lampman  v.  Milks,  1075 

Lamson  v.  Clarkson,  2 

Lancashire  i\  Mason,  404 

Landen  v.  McCarthy,  264 

Landis  v.  Scott,  459 

Landon  v.  Piatt,  957 

Lane  v.  King,  86,  88 

V.  Schermerhorn,  77 

?'.  Thompson,  459 
Langford  v.  Selmes,          202,  414,  591 

V.  United  States,  831 

Langley  v.  B.  &  M.  R.  R.,  28 

V.  Ross,  297,  499 

Langton  v.  Bacon,  682 

Laning  v.  Cole,  149 

Lansing  v.  Van  Alstyne,  816 

V.  Wiswall,  1069 

Lapham  v.  Norton,  959 
La  Plaisance  B.  H.   Co.  v.  City 

Monroe,  1083 

Larkin  v.  Misland,  87 


XX 


TABLE   OF   AMERICAN   CASES. 


PAGE 

PAGE 

Larkin  v.  Taylor, 

205 

Livingston  v.  Ketchara, 

1060 

Lame  i\  Russell, 

1133 

V.  McDonald, 

1081 

Larrabee-;;.  Lunibert, 

831,  1195 

V.  Ten  Broeck, 

1055 

La  Rue  v.  Gilkvson's  Ex 

'r. 

76 

.  Livingstone  v.  Potts, 

482 

Lassell  v.  Reed, 

230 

Lloyd  V.  Cozens, 

353,  414 

Lattimore  v.  Davis, 

1081 

Lobdell  V.  Hayes, 

459 

Laughran  v.  Smith, 

220,  354 

Lockwood  Co.  v.  Lawrence, 

1086 

Lavillebeuvre  ?■.  Cosgrove, 

1075 

Logan  V.  Herron,    356,  473, 

539,  1198 

Lawrence  v.  Burrell, 

481 

Long  V.  Fitziniinons, 

917 

?'.  French, 

273,  632 

V.  Stafford, 

297 

V.  Kemp, 

958 

Longfellow  r.  Longfellow, 

359 

V.  Saratoga  Lake  R 

Co. 

160 

Longmaid  v.  McNichol, 

1075 

Laxton  v.  Rosenberg, 

i>> 

202,  353, 

Longstreth  r.  Pennock, 

446 

366,  566 

Loomis  (.-.  Bedel, 

631 

Ld.  Dynevor  v.  Tennant 

291 

Looney  v.  McLean, 

284 

Ld.  Inchinquin  r.  Lyons 

351 

Loring  v.  Hailing, 

531 

Learned  v.  Wclton, 

52 

V.  Melendy, 

82 

Leary  v.  Meier, 

630 

Lothrop  V.  Thayer, 

917,  930 

Leavitt  v.  Fletcher, 

824 

911,  912 

Lougee  v.  Colton, 

650 

V.  Leavitt, 

350,  354 

Loughran  v.  Ross, 

955 

Le  Cain  v.  Hosterman, 

831 

Lounsbery  v.  Snyder,       212 

,  224,  351 

Lecatt  V.  Stewart, 

1197 

Loupe  V.  Wood, 

283 

Lee  V.  Payne, 

414, 

929,  935 

Lovett  i:  United  States, 

1003 

Leffingwell  v.  Pierpoint, 

531 

Low  r.  Elwcll,                         1132,1133 

Le  Gierse  v.  Green, 

415 

Lowe  V.  Miller, 

205 

Lehman  v.  Dreyfus, 

415,  4.34 

Lowell  ('.  Spaulding, 

912 

Leighton  ;•.  Van  Wart, 

358,  373 

Loyd  V.  Cozens, 

549 

Lcishman  v.  AVhite,  630, 632 

821,  822 

Lucas  V.  Brooks, 

74,  118 

Leitch  V.  Owings, 

693 

Lucy  r.  Lucy, 

459 

Leitensdorfer  v.  Hempstead, 

59,01 

V.  AVilkins, 

481 

Leland  v.  Gassctt, 

957 

Ludden  v.  Stern, 

"821 

Lcmar  v.  Miles, 

952 

Lundy  v.  Dovcy, 

383 

Leonard  v.  AVhite, 

233 

Lunn  V.  Gage, 

273,  825 

Leopold  r.  Judson, 

630,  632 

Lunt  V.  Holland, 

1082 

Le  Kay  De  Chaumonti-. 

Forsythe,  266 

Luther  v.  Winnisimet  Co., 

1080 

Lesley  v.  Randolph,        '- 

]53, 

-)30,  1198 

Lyman  v.  Ackerman, 

831 

Lessee  of  Bisbee  v.  llnU,    81,  82,  434 

Lyncii  r.  Bnldwin, 

822 

Lessee  of  Tucker  v.  Moreland,        61 

Lyon  V.  Cunningham, 

369,  474 

Levering  ?'.  Langley, 

388 

Levy  r.  M'Cartee, 

119 

Mac.  &  Aug.  R.  R.  Co.  v.  M 

ayes,    28 

Lewis  V.  Burr, 

82 

388,  418 

Macdonell  v.  I.  &  G.  N.  Ry. 

Co.,     29, 

V.  Brooks, 

209 

130 

V.  James, 

174 

Macgregor  ;».  Defoe,      5,  35' 

,359,660 

V.  layman, 

205,  290 

MacGregor  i\  Hawle, 

540 

V.  Payn, 

030,  631 

Machias  Hotel  Co.  c.  Fisher 

,    28,498 

Lewis's  Heirs  v.  Ringo, 

81,82,462 

Mactier  v.  Frith, 

170 

Leyman  v.  Abeel, 

1046,  10()0 

Magaw  v.  Lambert, 

042,  1003 

Libbey  r.  Staples, 

308,  350 

Magher  r.  C'olenum, 

663 

V.  Tolford, 

224 

284,  917 

Magill  V.  Young,               4ir 

,418,  422 

I'.  Chase, 

72 

Magrath  ?'.  Todd, 

424 

Lienow  v.  liicliio, 

935 

Main  r.  Schwarzwaelder, 

957 

LiTialian  r.  Barr, 

956 

Mairs  r.  Sparks, 

1197 

Lincoln  v.  Biickmaster, 

77 

Manier  v.  Myers, 

1074 

Linden  v.  Hepburn, 

415 

Manough's  A])i)('al, 

610 

Lindenbower  ?•.  Bentley, 

1118 

Mansur  tJ.  Pratt, 

68 

Lindlev  v.  Kellcy, 

205 

Manwcll  i\  Mnnwell, 

205 

T,'.  "Miller, 

825 

Maples  11.  Miilon, 

956 

Lithgow  ?-.  Mt)ody, 

358 

373,  473 

Mara  r.  Fit/gerald. 

162 

Little  V.  Martin, 

h:!0 

Marden  v.  -Jordan 

87 

V.  Palister,        352, 475, 

500,  1118 

Mariner  i'.  Crocker, 

888 

TABLE   OF   AMERICAN   CASES. 


PAGE 

Markland  v.  Crump, 

26G 

Marks  v.  Ryan, 

955 

Marrin  r.  Graver, 

218 

Marshall  v.  Jaquith, 

71 

Martin  v.  Black, 

82,  00,  4(54 

V.  Jett, 

1081 

V.  Knapp, 

86 

r.  Martin, 

404 

V.  Miles, 

87 

V.  Riddle, 

1081 

V.  Spicer, 

226 

V.  Splivale, 

1195 

Martin's  Appeal, 

461 

Marys  v.  Anderson, 

655 

Mason  v.  Felton, 

76 

V.  Hawes, 

1133 

i\  Powell, 

1197,  1275 

V.  Stiles, 

929 

Masters  v.  Green, 

707 

Match  V.  Patchin, 

4,281 

Matter  of  Croney, 

446 

of  Dyer, 

67 

of  Fowler, 

445 

of  Jane  ftunter. 

149, 272 

of  McGrath, 

445 

of  Morgan  R.  R.  &  S.  S.  Co.,  434 

of  Nicol,  67 

of  Utis,  77 

of  Woodworth,  462 

Matthews  v.  Stone,  692,  693 

Matthias  v.  Pace,  481 

Mauney  ?'.  Motz,  26 

Maverick  v.  Gibbs,  205 

May  V.  Rice,  474 

Mayfield  v.  White,  722 

Maynard  v.  Maynard,  289,  290 

Mayo  I'.  Fletcher,  831 

Mayor  &c.  v.  Parker  Vein  S.  S.  Co.,  822 

Mayor  of  N.  Y.  v.  Mabie,    4,  81,  130, 

281,  462 

M'Calmont  v.  Mulhall,  186 

McCanna  v.  Johnston,  639 

McCarthy  v.  Henderson,  62 

V.  Yale,  473,  539,  1195 

McClead  v.  Davis,  459 

McClenaghan  v.  Barker,  353,  711 

V.  New  York,  912 

McClure  v.  Red  Wing,  1080 

M'Comb  ('.  Wright,  150,  151 

McCormick  v.   Kans.   City   &c. 

R.  R.,  1081 

V.  Young,  415 

M'Coy  V.  Scott,  459 

McCray  v.  McCray,  166 

M'Crea  v.  Punnont,  149 

McCready  r.  Tliompson,  1074 

McCreery  v.  Clafflin,  691 

McDevitt  r.  Lambert,  474,  541 

V.  Sullivan,  404,  406,  021 

M  Oonald  v.  Lindail,  1072 


McDonald  r.  Rose, 
McDougal  i\  Sanders, 
M'Dougal  V.  Sitcher, 
McDowell  V.  Simpson, 
McElroy  o.  Dice, 
McKwen  v.  Dillon, 
McFarland  v.  Chase, 
McFarlanc  i'.  Dickson, 

V.  Pierson, 
McGee  v.  Gibson, 
M'Ginness  r.  Kennedy'', 
McGovven  v.  Sennett, 
McGrath  v.  Boston, 
Mcllvaine  v.  Harris, 
McJunkin  r.  Dupree, 


PAGE 

161 

593 

1132 

351 

720 
912 
475 
165 
632 
381 
157 
655 
155 
290 
956,  958 
McKeage  v.  Hanover  Ins.  Co.,        958 
McKelvey  v.  Rourke,  161 

McKenzie  v.  Lexington,  2,  491 

V.  McGlaughlin,  223 

McKibbin  v.  Brown,  144 

McKildoe's  Ex'r  v.  Darracott,       1010 
McKinney  i'.  Peck,  354 

M'Kinney  v.  Reader,       684,  709,  719, 
720,  7.30 
McKircher  v.  Hawlcy,  86,  657 

McKissack  v.  Budlington,  202 

McLaughlin  v.  McLeod,  81 

V.  Nash,  959 

McMahan  v.  Tyson,  650 

McManus  v.  Carmichael,  1082 

McMinn  v.  Bliss,  ''■196,  1275 

McMuUen  v.  Riley,  901 

McNair  v.  Schwarz  1195 

McNeely  r.  Hart,    '  203 

McPherson  v.  Norris,  359 

McQuigg  V.  Morton,  816,  817 

McUea  v.  Cent.  Nat.  Bk.,953,  954,959 
McWillie  v.  Hudson,  709 

Mead  v.  Thompson,  648,  684,  694 

Meader  ;;.  Stone,  1132 

Meador  v.  Everett,  439 

Meagher  v.  Coleman,  245,  404 

Mechanics  Bank  of  Alexandria 

?'.  Columbia,  26 

Medway  Cotton  Man.  Co.  v.  Adams,  26 
Meeks  v.  Hahn,  462 

Melhop  V.  Meinhart,  957 

Melley  v.  Casey,  73 

Mercereau  t'.  Bergen,  1197 

Merger  Doe  d.  Clitf  v.  Connaway,  475 
Merriam  v.  Willis,  ^350,  1132 

Merrill  r.  Bullock,  373 

V.  Forbes,  1196,  1274 

Merritt  v.  Brinkerhoff,  1084 

r.  Fisher,  205 

Merryman  v.  Bourne,  631 

Metcalfe  v.  Fosdick,  291 

Mickie  z\  Lawrence,  816 

Mickle  V.  Miles,  652 

Middleton  v.  Pritchard,  1083 


XX 11 


TABLE   OF   AMERICAN   CASES. 


PAGE 

Miles  V.  James,  684,  694 

Millay  v.  Millay,  382,  1133 

Mill  Dam  c.  Hovey,  24 

Miller  v.  Baker,  956 

?•.  Goodwin,  71 

r.  Ridgeley,  354,  359 

Mills  I'.  United  States,  113 

Minn.  Co.  v.  St.  Paul  Co.,       954,  958 

Minor  v.  Sharon,  283,  823,  914 

!Miltenberger  r.  Logansport  11.  Co.,  99 

Mitchell  V.  Billingsley,  956 

V.  Cantrill,  291 

V.  Franklin,  650 

V.  Pendleton,  831 

V.  Warner,  266,  269 

Mobile  V.  Eslava,  1083 

Moffat  V.  Strong,  821 

Monaghan  v.  Agr.  Fire  Ins.  Co.,       61 

Montague  v.  Dent,  958 

Montgomery  v.  Spence,  387,  388, 

415,  816 

Moody  V.  Mayor  of  N.  Y.,  1122 

Moore  v.  Boyd,  544,  1133,  1146 

V.  Goedel,  1128 

V.  Houston,  531 

V.  Kay,  218 

V.  Sanborn,  1083 

V.  Townshend,  916,  930 

V.  Valentine,  959 

Morgan  v.  Arthurs,  952 

V.  Campbell,  696 

Morrill  v.  Mackman,  353 

Morrison  v.  Buoksport  &  Bangor 

R.  R.,  1081 

V.  Marquardt,  1074 

V.  Rosignol,  147,  188 

Morton  v.  Dean,  144,  150,  168 

V.  Pinckney,  388,  418 

Mosby  V.  Leeds,  650 

Moshier  v.  Reding,  382 

Moss  r.  Oakley,  28 

Mott  V.  Hicks,  25,  28 

Motte  V.  Alger,  71 

Moult/jn  V.  Moore,  918 

V.  Robinson,  204,  205 

Mugford  V.  Ricliardson,  1133 

Mullen  V.  Striker,  1074 

Mumford  v.  Brown,  19,  283 

Murch  r.  Concord  R.  R.  Co.,  28 

Murcliie  v.  Gates,  1091 

Murdock  V.  Gifford,  959,  960 

V.  Ratcliff,  81,  82,  4(52 

Murphy  v.  Marland,  956 

Murray  v.  Cherrington,  3(i() 

I'.  I'.niinons,  73 

r.  Ilarway,  1010 

Mussoy  r.  Scott,  1133 

Mustard  r.  Wohlford's  Heirs,  61 

Myers  i:  Burns,  825,  911,  912 

V,  Forbes,  146 


PAGE 

Myers  r.  Gemmel, 

631, 

1075 

V.  Silljacks, 

188 

r.  Smith, 

722 

Napier  r.  Bulwinkle, 

1074 

V.  Darlington, 

266 

V.  Foster, 

648 

Nassau  Bank  v.  Jones, 

28 

Naumberg  v.  Young, 

282 

283 

Nave  r.  Berry, 

286 

Negley  r.  Morgan, 

415 

Nellis  V.  Lathrop, 

816 

Nelson  v.  Cook, 

373 

,  475 

Neumeister  v.  Palmer, 

473 

539 

New  Albany  R.  R.  v.  Peterson,    1094 
Newall  r.  Wright,  85,  86,  87 

Newcomb  v.  Ketteltas,  51 

V.  Ramer,  230 

V.  Stebbins,  459 

Newliall  V.  Ireson,  1084 

Newman  v.  Rutter,  500 

Newport  Mech.Man.  Co.  v.  Star- 
bird,  26 
Newton  v.  Eddy,  1082 
N.  Y.  Inst,  for  Blind  r.  How's  E.\'rs,  26 
N.  York  Life  Ins.  Co.  v.  Milnor,  1072 
Nicoll  v.  N.  Y.  &  Erie  R.  R.  Co.,  297 
Nichols  v.  Dusenbury,                      825 

V.  Luce,  1072 

Noble  V.  Bosworth,  290 

V.  Smith,  230 

Noe  V.  Gibson,  694 

Noel  V.  McCrory,  373 

Norcum  v.  Sheahan,  61 

Norman  v.  Wells,  264,  266,  1018 

Northern  Bank  v.  Roosa,  82 

Northern  Cent.  R.  Co.  v.  Canton 

Co.,  959 

Norton  r.  Craig,  230 

V.  Strong,  68 

r.  Vuitee,  817 

Nowery  v.  Connolly,  658 

Nowian  v.  Trevor,  630 

Noyes  v.  Marsii,  147 

O'Bannon  r.  Roberts'  Heirs,  459,402 

O'Brien  v.  Ball,  2,  822 

V.  Capwell,  283 

O'Callaghan  v.  Booth,  127(» 

Ocean  Grove  v.  Asbury  Pk.,  1094 

Odell  V.  Buck,  77 

O'Donnel  v.  Sevbert,  683 

O'Donnell  v.  Hitchcock,  957 

Ogburn  r.  Connor,  1081 

Ogden  r.  DulTy,  654 

?•.  Jennings,  233 

Ogilvie  V.  Hall,  031,  632 

O'llara  v.  Jones,  648 

Old  Col.  R.  R.  Co.  r.  Evans,  149 

O'Leary  v.  Delaney,  901 


TABLE   OF    AMEIUCAX    CASES. 


PAOB 

233 
Oliver  V.  Dickinson,  ^^^^^  ^^,^^ 

Onibony  i".  Jones,  '  ,g.^ 

(VNeill  r.  CahiU,  2^5 

Ovcutt  V.  Moore,  ^^..^   ;](56 

Orsei-y.  Vernon,  ()5o' 957 

Osborne  «.  Humphrey,  J-^^,,  .^^_^ 
Osgood  ?;.  Howard, 

OUumwa    Woolen    Mill  Co.   v.  ^^^^^ 

Hawlcy,  857 

Outram  v.  lay  lor,  ^^.,.^ 

()verdeer^^  Lewis,  ^^ 
Overman  r.  Sanborn, 

Overseers  i;.  Overseers,  /uo,  ^uu 
Overseers  of  North  Whitehall  r 
^  ol^Seers  of  South  WlutehaU^^^ 

Overton  ..  WilUston,  •><^-.  ^^^J 

Overturf  r-  Dugan,  ^^^ 

Oves  y.  Oglesby,  gg^ 

Owen  V.  Boyle,  gj^g 

Owens  V.  Conner,  ^^23 
Owings  V.  Jones, 

Page  v.  McGlinch, 
Page  V.  Tucker, 
Palmer  v.  Mulligan, 
y.  Oakley, 
V.  Palmer, 
V.  Waddell, 
V.  Wetmore, 
Pardee  v.  Gray, 
Paris  V.  Vail, 
Park  V.  Baker, 
Parker  v.  Foote, 
V.  Redfield, 


People  V.  Alb.  &  Vt.  11.  H-  Co.. 
V.  Conklin, 
„.  Darling, 
i;.  Field, 
V.  Gillis, 
r.  Leonard, 
V.  I'latt, 
V.  Kickert, 

r.  llobertson, 

V.  Smith, 

V.  St.  Louis, 

V.  Van  Nostrand, 

V.  Westervelt, 
Pepper  v.  Kowley, 
Perine  r.  Teague, 
Perkins  r.  Dyer, 

v.  Swank, 
Pernam  v.  Wead, 
Perry  c  Brainard, 
Waggoner, 


XXIU 

PAGB 
122 

119 
353 
1197,  1276 
155 
1 197 
1001,  1082,  1083 
212,351,  119(5, 
1U)7,  1275 
20, 247, 414 
111)6,  1274 
1083 
1197 
81,  82,  434 
821,  825 


66 

956 

1072 

67 

648 


1-    vvatrgouei, 

1       r  ).  1?  U  Co  V.Nashua 
Peterborough  II.  U.^o.         ^5,  28, 122 

&L.  K.KCo.,  .^,g 

Peters  v.  Kewkirk,  ^^ 

Peterson  r.  Laik,  ..Qg^ 

Pettigrew  v.  EvansviUe,  i^«_. 

Pettingill  v.  Porter,  ,^j- 

Phelps  V.  Baldwin,  .^ 
Phila:&SR.R.Co.«.'Catav.Jsa^^^ 

11.  R.  Co.,  '  4g| 

Philip  V.  McLaughUn, 
Phillips  i;.  Covert,  '^^z,  ou-.^       _, 


Parks  V.  Newbuvyport,  ^^^^ 

Parmenter  v.  Caswell,  ^g^. 

Parrott  i^  Barney,  "     '  ^go 

Parsons  v.  Camp,  ro^ 

u.  Chamberlain,  ^^^ 

r.  Copelaud,  ,^:^ 

Patterson  r.  Stouaaru,     ou  ,           ^^^^ 

Pattison  i;.  Hull,  ^g^ 

Payne  u.  Wallace,  g^g 

Pea  V.  Pea,  ^47 

Pearl  v.  Harris,  ,^g 

r.  M'Uowell,  247 

Pease  v.  Norton,  ^^2,  959 

Pemberton  v.  King,  g^Q 

Pendleton  r.  Dyett, 

Pennimanr   Hartshorn,  '^ 

Penn.  t'.  Rohmson,  {loe   1275 

i,.  Waddle,  11^^'  '-':, 

r.  St.  Louis  &c.  R.  K.  '■- 

Penn.  Coal  Co.  ..  Sanderson,        1  8b 

SyS^e^M^S^^     056:957 


V.  Green, 
V.  Phillips, 
r.  Stevens, 
Pickard  v.  Collins, 

V.  Kleis, 
Pickering  i'.  Staples, 
Pickett  V.  Bartlett  ^ 

Pierce  v.  Concord  R.  R-  «^o., 

V.  George, 
Pierre  v.  Fernald, 
Piggot  V.  Mason, 
Tike  ('.  Witt, 
Pillow  V.  Love, 
Pitman  v.  Davis, 
Piatt  i".  Farney, 
Pleasonton's  Appeal, 
Poindexter  v.  Blackburn, 
Pola-ck  ('.  McGrath, 
Pollard  V.  Shaeffer, 
Porch  V.  F'ries, 
Port  V.  Jackson, 
Porter  v.  Dunham, 
V.  Merrill, 


917,  929,  935 
00 
1070 
900 
1122 
499 
233 
354,  358,  373 
28 
959 
1074 
266,  414 
1196,  1275 
952 
1197 
284 
52 
1145 
1190, 1275 
817,  822 


V.  Schofield, 
Post  V.  Kearney, 


816 
1081 

141,  202,  270,  297, 
364,498 
52 
4U 


XXIV 


TABLE   OF   AMERICAN   CASES. 


PAGE 

Post  V.  Vetter, 

274,  284 

Poston  V.  Jones, 

630,  631 

Pott  V.  Leslior, 

831 

Potter  V.  Cunningham, 

290 

V.  Hall, 

647,  048 

V.  Jacobs, 

164,  160 

Powell  r.  Lane, 

1275 

V.  Lovegrove, 

147 

V.  IMonson, 

959 

V.  Sims, 

1075 

Powers  V.  Dennison, 

956 

Pratt  V.  Lanison, 

1084 

V.  Levan, 

82,418 

Pratte  v.  Coft'man's  Ex'r, 

229,  290 

Pray  v,  Clark, 

147 

V.  StebLins, 

72 

Preble  v.  Hay, 

473 

Presby  v.  Williams, 

247 

Preseott  v.  De  Porest, 

414 

V.  Elm, 

543 

V.  OttiTstatter, 

825 

Preston  v.  Hawley, 

1195 

Prestuns  r.  McCall, 

658 

Prettyman  r.  Unland, 

648,  084 

Price  V.  Brayton, 

956 

V.  Hall, 

690 

V.  McCallister, 

683 

V.  Smith, 

657 

Price's  Ex'rs  v.  lieynoUls, 

824 

Prickett  c.  Kitter,354, 859, 474 

,530,541 

Priest  V.  Nichols, 

913 

V.  Tarlton, 

247 

Prince  v.  Case, 

956 

Prindle  v.  Anderson, 

354, 359 

Procter  v.  Keith, 

224 

Provost  V.  Calder,     20G,  290 

388,410 

Piigsley  IK  AikiMi, 

81,  402 

Purcell  r.  English, 

284,  913 

V.  Tliomas, 

658 

Purvis  V.  Hume, 

188 

Putnam  ?•.  Ritchie, 

68 

V.  Wise, 

204,  206 

V.  Wyley, 

1118 

Pyle  V.  Maulding, 

247,  531 

V.  Pennock, 

955 

QtjACKENitos  V.  Clarke,  426 

Quay  r.  T>ucas,  42(! 

Queen  v.  Miller,  22,  113 
Quimby  (-.Manhattan  Paper  Co.,  953, 

954 

Quinn  v.  Wallace,  •  719 

Raddin  )'.  Arnold,  952 

R.  Rd.  Co.  r.  Scliurmeir,  1082 

Ry.  Co.  V.  Linard,  648 

Railway  Co.  v.  Vance,  122 

Rand  v.  Rand,  247 

Randall  r.  Rich,  388,481 

V.  Van  Vechten,  25,  20 


PAGE 

Rank  v.  Hill's  Adm'r,  459 

Rankin  v.  Simpson,  166 

Ray  r.  Lynes,  1074 

I'.  Sweeney,  1074,  1075 

Reab  v.  McAlister,  825 

Reader  v.  Purdy,  1133 

R«am  !'.  Harnish,  205 

Reckhow  r.  Schanck,  21,  22,  475 

Rector  v.  Bacon,  410 

Redmon  v.  Bedford,  205 

Reed  u.  Reed,  373,  474,  1195 

V.  Ward,  410 

Reeder  r.  Say  re,  212,  351,  530 

Rees  V.  Baker,  205,  1 126 

V.  Emerick,  719 

Reeve  i\  Tliompson,  410 

Reeves  v.  Hyde,  825 

]?egina,e.r?e/.Northwoodi>.  Askin,  387 
Reid  V.  Kirk,  957 

Renisen  v.  Conklin,  499,  619 

Rennyson's  Ai^peal,  1075 

Re  Willis,  ex  }><irte  Kennedy,  216 

Reynold's  Heirs  v.  Commissioners, 

81,  82,  462 
Rhinelander  v.  Seaman,  823,  914 

Rich  V.  Boulton,  366,  367,  544 


Richards  i\  Gauffret, 

130 

V.  McGratli, 

719 

Richardson  v.  Copeland, 

952,  959 

I'.  Pond, 

1074 

RiciinKmd  v.  Gray, 

178 

Riddle  r.,Welden, 

682,  692 

Ridgeway  Stove  Co.  ?' 

Way,        953, 

955,  957 

Ridgley  i-.  Stillwell, 

35 

1,  352.  353, 
362,  619 

Rinehart  v.  Ohvine, 

205 

Rising  V.  Stannard, 

17, 

1145,1146 

Ritzier  v.  Raetlier, 

491 

Roatii  ('.  Driscoll, 

1094 

Robbins  ?'.  Mount, 

283 

Roberts  r.  Dauphin  Di 

pos 

Bk.,     952 

V.  Sims, 

593 

V.  Smith, 

048 

V.  Tarver, 

1132 

V.  Wiggin, 

60,  61 

Robertson  v.  I'liillips, 

956 

Robeson  /•.  Pittenger, 

1074,  1075 

Robie  IK  Smitii, 

475 

Robinson  v.  Crummer, 

1197 

V.  Deering, 

352 

V.  Ketteltas, 

147,159 

V.  Lehman, 

648 

r.  Perry, 

387,  413 

IK  Wlieeler, 

92i) 

V.  Wriglit, 

957 

V.  Zollinger, 

05,  m 

Roby  ('.  PlieloM, 

71 

Rodman  v.  Rodman, 

461 

Rogan  V.  Dockery, 

283 

TABLE   OF   AMERICAN   CASES. 


XXV 


Roger  V.  Roger, 
Rogers  v.  Crow, 

V.  Dickey, 

V.  Siiwin, 
Roget  V.  Merritt, 
Rollins  V.  Moody, 

V.  jMooers, 
Ross  V.  Gill, 

V.  Swaringer, 
Roth  V.  Williams, 
Rotzler  v.  Rotzler, 
Roussin  V.  Benton, 
Rowand  v.  Anderson, 
Rowe  V.  Granite  Br.  Co. 
Royce  v.  Guggenheim, 

Rubbottom  v.  Morrow, 
Russell  V.  Buckley, 

V.  Doty, 

V.  McCartney, 

V.  Richards, 
Rutgers  v.  Hunter, 
Ryan  v.  Kirchberg, 
Ryder  v.  Robinson, 
Ryerss  v.  Farwell, 

Salisbury  v.  Shirley, 
Sampson  v.  Henry, 

V.  Stearns, 
Sanders  v.  Partridge, 
Sanford  v.  Ilarvey, 
Sanger  v.  Fincher, 
Sargent  v.  Courrier, 
Saunders  v.  Hanes, 
Savory  v.  Stocking, 
Sawyer  v.  Lufkin, 
Say  V.  Stoddard, 
Scarlett  v.  Lamarque, 
Sclice  ?'.  Wiseman, 
Schell  IK  Simon, 
Scbieffelin  v.  Carpenter, 
Schlemmer  v.  North, 
Schlichter  v.  Phillipy, 
Schmitt  V.  Cassilius, 
Schneider  v.  Staihr, 
Scliool  Directors  v.  McBride, 
Schott  V.  Harvey, 
Schuyler  v.  Leggett, 

r.  Smith, 
Scott  V.  Hale, 

V.  McEwen, 

V.  Russell, 

V.  Simons, 
Scully  ?'.  Murray, 
Seaman  v.  Smith, 
Sears  v.  Smith, 
Seaver  v.  Coburn, 

V.  Phelps, 
Secor  V.  Pestana, 
Seem  v.  McLees, 


PAGE 

PAGE 

lOG 

Selby  r.  Robinson,    414, 

415, 

426,  817 

958 

Selden  v.  Williams, 

225 

694 

Settle  V.  Hanson, 

1197 

1074 

Seymour  v.  Lynch, 

203 

149 

Shaffer  v.  List, 

77 

352,  481,  8.S0 

I'.  Sutton, 

354,  058 

1132 

Shanagan  v.  Shanagan, 

348 

(58 

Shapiria  v.  Barney, 

952 

205 

Sharp  I'.  Cutlibert, 

130 

225,  048 

V.  Robertson, 

62 

648 

Sheerer  v.  Stanley, 

404,  435 

1118 

Sheets  r.  Selden's  Lessee, 

247,  531 

956 

Slienk  V.  Mundorf, 

935 

1083 

Shepherd  a.  Cummings, 

351 

283,  630,  631, 

Sherboneau  v.  Beav.  Fire 

Lis.  Co.,   956 

632,  824,  911 

Sherburne  v.  Jones, 

1145 

459 

Sherman  v.  Fall  Riv.  Iron  W.,      1086 

708,  720,  722 

V.  Fitch, 

24 

709 

V.  Seaman, 

283,  284 

252,  470,  543 

V.  Williams, 

630 

952 

Sliields  V.  Arndt, 

1080 

5,  578 

Shindlebeck  v.  Moon, 

1128 

482 

Shipman  c.  Mitchell, 

359 

170,  188 

Shirreff  v.  Vye, 

694 

830 

Shoenberger  r.  Lyon, 

289 

Shondy  v.  School  Dist., 

1197 

266, 415 

Shook  V.  Colohan, 

1083 

1132 

Shouse  V.  Krusor, 

459,  593 

1133 

Shrewsbury  &c.  I'.  Northwest  R.Co.,  28 

388 

Shrunk  v.  Schuylkill  Nav.  C 

0.,    1001, 

541,  543 

1082 

822 

Shumway  v.  Collins, 

297, 

410,  498, 

205 

630,  632 

5 

Shutt  V.  Carlos, 

68 

446 

Sluittleworth  v.  Shaw, 

816 

76 

Siefke  i'.  Koch, 

1010 

353,  306 

Silsby  V.  Allen, 

353 

1275 

Siniers  v.  Saltus,          88 

,481 

630,  631 

462 

Sinnnons  v.  Campbell, 

140 

155,  191 

204 

V.  Sines, 

1072 

481,  482 

Simonds'  Adm'r  v.  Beauchamp,     272, 

957 

274 

1081 

Simonton  v.  Loring, 

.1128 

205 

Sims  V.  Everhardt, 

60,61 

61,  02 

V.  Hampton, 

247 

Jride,          214 

Sinclair  v.  Jackson, 

52 

1128 

Singer  Mfg.  Co.  v.  Lamb, 

59,61 

351 

Skally  V.  Shute, 

630 

354,  358,  373 

Slay  V.  Milton, 

684,  709 

917,  930 

Sleeper  v.  Parrish, 

083 

683 

Sloan  V.  Biemiller, 

1062,  1083 

684,  709 

Smiles  v.  Hastings, 

1072 

283 

Smiley  v.  Van  Winkle, 

82, 

414,  420, 

353 

403,  495 

1083 

Smith  V.  Adams, 

1094 

211 

V.  Atkins, 

205, 290 

308,  1010 

V.  Aubrey, 

083 

77 

V.  Ault, 

354 

,  358,  373 

539 

r.  Benson, 

952 

542 

V.  Brinker, 

388,  415 

XXVI 


TABLE   OF   AMERICAN   CASES. 


Smith  V.  Carrol, 

V.  Colson, 

V.  Grant, 

V.  Hoag, 

V.  Niver,  < 

V.  Shepard, 

V.  Stewart, 

V.  Stis^cleman, 

V.  Walker, 

V.  Whitbeck, 
Smoot  V.  Strauss, 
Smyth  V.  Tankersley, 
Snedeker  v.  Warring, 
Snook  V.  Sutton, 
Snyder  v.  Kuukleman, 

V.  Warren, 
Sobey  v.  Brisbee, 
Sornbergger  v.  Berggren, 
Souders  v.  Vansickle, 
Southbridge  Sav.  Bk.  v. 

Works, 
Southport  &  W.  Lan 

V.  Tliompson, 
Spalding  v.  Mayhall, 

V.  Vandercook, 
Sparks  r.  State  Bank, 
Spear  v.  Orendorf, 
Speekels  v.  Sax, 
Spellman  v.  Bannigan, 
Sprague  v.  Baker, 
Spring  V.  Uussell, 
Springfield  v.  Harris, 
Squires  v.  Huff, 
Stackhouse  v.  Halsey, 
Staokpole  v.  Farrar, 
Stacy  V.  Vt.  Cent.  R.  R.  Co., 
Stafford  v.  Roof, 
Staples  V.  Emery, 
V.  Sprin 


PAGE 

95(3 

658 

229 

1197 

38,  481,  482 

4,630 

383 

630 

462 

499,  619 

657 

204 

954,  959 

65,68 

709 

247,  531 

211 

1145 

86,  657 

V.  Exeter 

953,  955 
Bank  Co. 

216,  375 

1196,  1197 

825 


959 

166 

273 

912 

266 

1083 

1084 

353 

531 

954,  955 

383 

62 

87,  230 

1122 


Starr  u.  Jacks.on,  935,1118 

State  V.  Caldwell,  1197,  1275 

V.  Crowder,  648 

V.  Elliott,  955 

V.  Fort,  1275 

V.  Franklin  F.  Co.,  1083 

V.  Gilmantown,  1083 

V.  Jackson,  247 

V.  Jewell,  204 

V.  Jones,  204,  1274 

V.  Northern  Cent.  R.  R.  Co.,    959 

V.  I'age,  202,  594 

V.  Tollock,  1197,  1276 

V.  Siiepard,  1197,  1275 

V.  Walker,  1197 

V.  Wilbourno,  648 

Steaniboiit  Co.  v.  M(!Cutchcon,       122 

Steamboat  Magnolia  v.  Marshall,  1083 

Stearns  v.  Sampson,  11152 

V.  Stearns,  459 

Stedman  v.  Mcintosh,  353,  306 


PAGE 

229, 290 
1074 
648 
211 
1133 
1084 
683 
543 
1018 
354 
204,  205,  206, 
1145,  1146 
V.  Lanier  House  Co.,  825 

V.  L.  I.  R.  R.  Co.,         5,  202,  265, 
414,  415,  426,  476,  495,  591 


Steele  r.  Farber, 
Stein  V.  Hanok, 
Steinhardt  v.  Bell, 
Steininger  v.  Williams, 
Sterling  v.  Marden, 
Stevens  v.  Kelly, 

r.  Lodge, 
Steward  v.  Harding, 

i:  Winter, 
Stewart  v.  Apel, 

V.  Doughty, 


!'.  Futnam, 
Stillman  r.  Flenniken, 

V,  Hanier, 
Stinson  v.  Magill, 

V.  Stinson, 
St.  John  ('.  Palmer, 
St.  L.  A.  &  T.  H.  R. 

Todd, 
St.  L.  &  I.  M.  R.  R.  Co 


1128 

958 

956 

415,  816 

404,  459 

631 

R.  Co.  V. 

270 
Lud- 
wig,  353,  354 

St.  Louis  Pub.  Schools  v.  Boat 

men's  Ins.  Co., 
St.   Michael's   P.  E.   Church   v 

Behrens, 
Stockton  V.  Guthrie, 
Stockwell  V.  Campbell, 
V.  Hunter, 
V.  Marks, 
V.  Sargent, 
Stoelker  v.  Wooten, 
Stokes  V.  Cooper, 
Stone  V.  Damon, 
V.  Malot, 
V.  Matthews, 
V.  Patterson, 
Story  ('.  Odin, 
Stott  ('.  Rutherford, 
Stout  ('.  St()])pel, 
Stow  V.  Yarwood, 
Stowell  V.  Lincoln, 
Strain  r.  Gardner, 
Streeter  v.  Streeter, 
Strickland  v.  Parker, 
Strohecker  v.  Barnes, 
Strong  r.  Hirchard, 
r.  Crosby, 
V.  Garfield, 
V.  Stebbins, 
Stubbiefield  r.  Soule, 
Sturdee  v.  Merritt, 


Sturges  V.  Warren, 
Stuyvesant  v.  Dunham, 

V.  WoodrnlT, 
Suffern  v.  Townsend, 


425 

481 

816 

957 

283,  476 

473,  955,  957 

16 

648 

632 

77 

1197 

693 

406,  021 

1075 

2,  4, 105,  281 

952 

822 

1084 

205 

822 

955,  959 

273 

631 

361 

831 

683 

823 

17,  18,  354, 

359,  ()60 

954 

9:!5 

1070,  1072 

602 


TABLE   OF    AMERICAN   CASES. 


PA(3K 

Sullivan  i:  Carberry,  367,  474 

V.  Gary,  354 

SuUivans  v.  Enders,  353 

Sultphin  V.  Seebas,  481 

Sunol  V.  MoUoy,  204 

Sutherland  v.  Buchanan,  47(5 

Sutphen  v.  Thorkelson,  1075 

Suydam  v.  Jones,  2GG 

ISwain  v.  Ayrcs,  140,  191 

Swartswelder  v.  U.  S.  Bank,  1190 

Sweetzcr  v.  McKenney,  5,  585 

Swctt  y.  Cutts,  1081,  1094 

Swift  V.  Thompson,  954,  959 

Swords  r.  Edgar,  1122 

Sylvester  v.  Kalston,  04,  68,  383 

Synionds  v.  Hall,  205 

Syms  V.  Mayor  of  N.  Y.,  5,  578 
Syracuse  City  Bank  v.  Tallman,      88 

T.  &  B.  R.  R.  Co.  V.  B.  H.  T.  & 

W.  Ry.  Co.,  122 

Taffe  V.  Warnick,  959 

Taggart  v.  Roosevelt,  211,  351 

Tainter  r.  Cole,  17 

Talbot  V.  Whipple,  481 

Taliaferro  v.  Pry,  648 

Tallniadge  v.  Wallis,  822 

Tallman  v.  Coffin,    265,  270,  274,  297 


IK  Gashweiler, 
Tapley  v.  Smith, 
Taylor  v.  Bcnhani, 

V.  Bradley, 

V.  Soldati, 

V.  Townsend, 

?;.  Watkins, 
Teaff  V.  Hewitt, 
Terry  v.  Bale, 
Tex."&  Pac.  R.  Co.  v.  Baylis, 

V.  Bayliss, 
Thamni  i'.  Hamberg, 
Thomas  v.  Connell, 

IK  Kingsland, 

V.  Mirehouse, 

V.  Moody, 

I'.  Railroad  Co., 

V.  Sanford  Steamship  Co.,      352, 

481,  816 

Thompson  v.  Gould,  164 

V.  Mead,  694 

V.  Rose,  264,  265,  266,  268 

Thomson  v.  Longard,  176 

Thornton  v.  Payne,  154,  246 

V.  Wilson,  650 

Thurber  v.  Martin,  1084 

Tibbitts  V.  Percy,  273 

Tifft  V.  Horton,  951 

Tiley  v.  Moers,  821,  822 

Titus  V.  Haines,  930 

Tobey  v.  Bristol,  147,  161 

V.  Webster,  1118 


481 

952 

120 

204,  205,  206 

224 

957 

957 

953,  954 

459 

1126 

205 

544,  551 

262,  415,  434 

912 

694 

1146 

28 


Tobias  v.  Francis, 
Todd  V.  Cameron, 
Tone  V.  Brace, 
Toole  V.  Beckett, 
Tottcn  V.  Pliipps, 
Touchard  '".  Keyes, 
Tousey  v.  Roberts, 
Towle  V.  Swasey, 
Tovvne  v.  Bovvers, 

V.  Fiskc, 
Townsend  v.  Isenberger, 


Townsley  v.  Charles, 
Tracey  v.  Sacket, 
Treadwell  v.  Mardcn, 
Treat  v.  Peck, 
Triebtr  v.  Knabe, 
Trimble  v.  Pollock, 
Trout  V.  Perciful, 
Trull  V.  Granger, 
Truss  V.  Old, 

Trustees  i\ , 

Trustees  W.  University  v.  Robin 

son. 
Turner  v.  Bachelder, 

V.  Ferguson, 

V.  Thompson, 

V.  Wentworth, 
Tuttle  V.  Reynolds, 
Tyler  v.  Decker, 

V.  Wilkinson, 


954 

817 

130,  281 

913 

913 

462 

913 

459 

1145,  1146 

957 

205,  404, 

1118 

166 


77 
446 

77 
693 
459 
297 
3 
935 
120 


1055 

290 

2 

1075 

953,  957 

500 

957 

1084 


Uecker  v.  Koehn,  60 

Uhl  V.  Dighton,  650,  682 

Underhay  v.  Read,  86 

Underwood  v.  Stuyvesant,  1072 

Union  v.  Cleveland  R.  R.  Co.,         414 
Union  Bk.  v.  Emerson,  955 

Upton  V.  Townend,  032 

United  States  r.  Applcton,  1075 

V.  Bostwick,       286,  917,  929,  930 
V.  Gratiol,  203 

University  of  Vt.  v.  Joslyn,  817 

Vai  v.  Weld,  283 

Vallette  v.  Bennett,  52 

Van  Cortland  v.  Parkhurst,  356 

Vandekar  v.  Reeves,        388,  481,  482 
Vanderpoel  v.  Van  Allen,  959 

Van  Doren  v.  Everitt,  64,  68 

Van  Driel  v.  Rosierz,  404 

Van  Every  v.  Ogg,  913 

Van  Horn  v.  Hann,  76 

Van  Keuran  v.  Cent.  R.  R.  Co.,      959 
Vann  v.  Rouse,  481 

Van  Ness  v.  Hjatt,  87 

;;.  Pacard,  955,  956 

Van  Rensselaer  v.  Akin,  52 

V.  Bradley,  410,  425,  816 

V.  Jewett,  499,  593,  619 


TABLE   OF   AIMEKICAN    CASES. 


Van  Rensselaer  v.  Radcliff,  11)00 

Van  Rensselaer's  Exts  v.  Gallup,  410, 
414,  425,  817 
Van  Rensselaer's  Heirs  v.  Penni- 

man,  5,473,482 

Van  Schaick  v.  Third  Ave.  R.  R. 

Co.,  308 

Vassar  r.  Camp,  170 

Vaughan  v.  Haldeman,  9,58 

Vegeley  v.  Robinson,  353,  359,  481 
Vehue  v.  Mosher,  230 

Verhook  v.  Story,  1276 

Vernam  v.  Smith,  281 

Verplanck  v.  Wright,  264,  2G6 

Vess  V.  The  State,  1197 

Vibbard  c.  Johnson,  822 

Vinz  r.  Beatty,  212 

Viterbo  i:  Friedlander,  3,  161,  913 
Voorhees  r.  Burchard,  235 

Voorhis  r.  Freeman,  952,  955 

Vrooman  v.  McKaig,  354,  359 

Wade  v.  Halligan,  822 

Wademan  v.  Thorp,  952 

Wadleigh  v.  Williams,  1126 

Wad  ley  r.  Williams,  593 

Wadsworth  v.  Sherman,  76 

V.  Smith,  1083 

Waggoner  r.  Jermaine,  918 

AVagner  v.  Clev.  &  Tol.  R.  R.,       952, 

956,  959 

r.  L.  I.  R.  R.  Co.,  1081 

Wait  App't,  291,  463,  648 

Wait  V.  Maxwell,  76 

Walcott  V.  Pomeroy,  502,  929 

Waldron  v.  M'Carty,  631 

Walker  v.  Board  Pub.  Works,      1083 

V.  Fitts,  204 

r.  Giles,  353 

V.  Sharpe,  541,  549 

V.  Sherman,  953,  954,  955, 

956,  959 

V.  Slioemaker,  .       822,  825 

Walkins  >\  (Joodall,  284 

Wall  V.  Hinds,  817,  955,  958 

Wallace  v.  Kennelly,        388,  481,  482 

(;.  Lent,  481,  823,  914 

Walls  V.  Hinds,  262,  265,  415 

V.  Preston,  204 

;•.  Walker,  462 

Walmsley  v.  (Jriffith,  176 

Walsh  V.  Rundlelte,  165 

Walton  V.  Jacob,  1132 

".  Wray,  959 

Waltons  (•.  Cronly,     87,  262,  415,424 

Wiiltson  i;.  Bryan,  205 

Walworth  r.  Jenness,  205 

Ward  /).  Ncal,  1074 

I'.  Warner,  350 

Ware  v.  Blalock,  648 


PAGE 

Ware  v.  Chew,  1075 

V.  Wadleigh,            475,  500,  1195 

Waring  v.  L.  &.  N.  R.  Co.,  353,  359 

Warner  v.  Abbey,       19,  204,  205,  206 

V.  Hale,  353,  362 

Warren  v.  Blake,  1070 

V.  Ritter,  1196 

V.  Wagner,  74,  632,  916 

Wass  V.  Bucknani,  16 

Waterman  v.  Clark,  498 

V.  Johnson,  1083 

Watertown  r.  Cowen,  264,  266 

V.  White,  816 

Watriss  ik  Nat.  Bank,  955 

Watson  r.  Bioren,  1070 

?'.  Hunkins,  406 

Watterson  r.  Reynolds,  5 

Watts  V.  Coffin,  274,  825 

V.  Lehman,  952 

Waugh  I'.  Riley,  120. 

Webb  V.  Seekins,  381 

Webster  v.  Parker,  81,  462 

L\  Southey,  212 

Weed  V.  Crocker,  154 

Weeks  v.  Slv,                  352,  366,  1132 

Weidner  v.  Foster,  262,  265, 388,  424, 

425,  817 

AVeinsteine  v.  Harrison,  283 

Weiss  c.  Oregon  I.  Co.,  1084 

Welch  r.  Silliman,  297,  498 

Weld  V.  Traip,  155 

AVells  ('.  Banister,  957 

V.  Castles,  282,  284 

V.  Hornish,  657,  719 

r.  Seixas,  60 

V.  Slieerer,  500 

Wendell  v.  Baxter,  1123 

Wenger  v.  Raymond,  17 

Wentworth  cBuklcr,  143 

Wenzler  r.  McCotter,  1122 

Werner  v.  Ropii'cjuet,  711 

Wescott  I'.  Arbuckle,  1133 

West  V.  Atherton,  202 

(.'.  Cartledge,  816 

V.  Sink,  710 

Western  N.  C.  v.  Deal,  950 

Western  R.  R.  v.  Babcock,  175,  182, 

188 
Western  Union  Tel.  Co.  v.  Fain,    353 

AVestgate  >■.  Wixon,  956 

West  lake  v.  De  Graw,  630,  825 

Westmoreland  v.  Davis,  76 

V.  Foster,  406,  621 

West  Roxburv  v.  Stoddard,  1083 

Wetsel  (;.  Mayers,  084,  094 

Wliah-y  ?'.  Jacobson,  648 

Whalin  V.  White,  88 

Wheatley  >\  Bnugh,  1094 

Whcntoii  r.  K;ist,  60 

Wheeler  r.  Ik-nt,  247 


TABLE   OF    AMERICAN   CASES. 


XXIX 


PAGE 

Wheeler  v.  Cowan,  •io\) 

V.  Gilsey,  1072 

V.  Kirkendall,  1140 

V.  Spinola,  1083 

Wheeler  &  Wilson  Man.  Co.  i'. 

Charters,  o4G,  347 
Whitiiker  r.  Brown,  289 
Whitbeok  v.  Skinner,  825 
White  I'.  Arndt,  956 
V.  Ehvell,  366 
V.  Flora,  61 
V.  Griffing,  446 
V.  Maynard,  141,  202,  364 
V.  Nelles,  935 
V.  Tyndall,  261 
Whitebeck  v.  Cook,  73 
AVhitehorn  v.  llines,  77 
Whitcuiarsh  v.  Cutting,  1145 
Whitinii-  V.  Brastow,  956 
V.  Lake,  682 
Whitmarsh  v.  Walker,  956 
Whitney  v.  Allaire,  3,  245,  348 
V.  Lewis,  822 
V.  Swett,           352,  366,  565,  1133 
Whittaker  v.  Perry,  1133 
Wliitteniore  v.  Gibbs,  387,  413 
Wickershani  ?•.  Irwin,  262,  434 
Wilbur  V.  Alniy,  52 
t-.  Tobev,  119,120 
Wilcox  V.  Wood,  247 
Wilde  V.  CantilhMi,  373,  1132 
Wilder  v.  Maine  Cent.  R.  II.,  270 
Wiley's  Appeal,  81,  462 
Wiigus  V.  Lewis,  354,  359 
V.  Whitehead,  551,  1198 
Wilkes  V.  Steele,  816,  824 
Wilkinson  v.  Clauson,  283 
Willard  v.  Harvey,  90 
V.  Tallinan,  265 
V.  Taylor,  161 
V.  Tillman,  406 
V.  Warren,             1132,  1196,  1274 
Williams  v.  Ackerman,  351,  481 
V.  Howard,  709 
V.  Safiord,  1070 
V.  Smith,  205 
V.  Terboss,  711 
v.  Woodard,  388,410,426 
Williamson  r.  Farrow,  247,  531 
Williamson's  Adm'x  v.  Richard- 
son, 459 
Willis  V.  Astor,  578 
Wilmarth  v.  Prntt,  205 
Wilson  r.  Bradford,  71 
V.  Branch,  00,  61 
V.  Gerhardt,  388,  415 
V.  Martin,  141,  202,  364 
r.  Prescott,  352,  816 
Wincli    ?•.    Birk.    Lan.  &    Clies. 
June.  11.  R.,  1'22 


PAGE 

Windsor  v.  China,  247 

Wing  V.  Gray,  950,  958 

Winslow  V.  Merchants'  Ins.  Co.,    952, 
953,  955,  959 
Winton  v.  Cornish,  273,  475 

Wissler  i'.  Hershey,  1072 

Witliers  r.  Larrabee,        352,  481,  544 
Withnell  v.  Petzold,        351,  353,  354, 
359,  366 
Withy  V.  Mumford,  266,  270 

Witt  V.  Mayor  of  N.  Y.,      5,  354,  474, 
530,  541 
Witthaus  V.  Starin,  3,  245 

Wittrock  V.  llalliiian,  404 

Wolfe  r.  Arrott,  346,  347,  914 

Wolffe  V.  Wolffe,      354,  358,  359,  373 
Wumack  i'.  McQuarry,  273,  475 

Wood  r.  B.  &  B.  R.  R.  Co.,  122 

V.  Partridge,  387,  619 

Woodbury  v.  Woodbury,  383 

WoodliuU  V.  Rosenthal!,  414 

Woodman  v.  Francis,  1118 

?'.  Pease,  958 

Woodrow  V.  Michael,      353,  302,  474, 
541,  543 
Woodruff  V.  Adams,  205 

V.  Erie  Ry.  Co.,  28,  122 

Woods  V.  Naumkeag  Steam  Cot- 
ton Co.,  284 
Woodward  v.  Spurr,  71 
Worcester  Turnpike  r.  Willard,     123 
Worrillr.  Barnes,                        648,649 
Wortiiingt(m  r.  Cooke,             410,  816 
V.  Parker,                                     284 
Wriglit  V.  Graves,     •               2,  22,  202 
V'.  Lattin,                                      273 
V.  Matthews,                                683 
V.  Mullens,                                 1197 
V.  Stovert,                                     141 
Wimsch  V.  Gretel,                            1196 
Wyman  v.  Ballard,                            260 
V.  Hook,                              350,  831 
V.  Sperbeck.                                 214 
Wynkoop  v.  Burger,                       1070 

957 


Yater  v.  Mullen, 

Yates  V.  Kinney, 

Yeates  v.  AUin,  "  113 

York   &  Maryland   L.    R.   R.   v 

Winans, 
Youmans  ?•.  Caldwell, 
Young  r.  Bown, 
.'.  Dake 


87,  205,  423 


28 
290 
188 
211 


V.  Hargrave's  Adm'r,  281 

V.  Peyser,  82,  388,  418 

V.  Young, 

Youngblood  >■.  Lowr.v, 

Youngs  ?'.  Freeman, 


352 

690 

1197 


Zeitkr  v.  Bownuui. 


88 


TABLE   OF   ENGLISH   CASES. 


[References  are  to  the  star  paging.] 


Abadam  v.  Abadam, 
Abbey  ?•.  Fetch, 
Abbot  r.  Blair, 
V.  Weekly, 
Abbott  V.  Macfie, 
Absalam  i\  Kin^, 


PAGE 

565 
481 
113 
77 
739 
414 
Accidental  Death  Insurance  Co. 

v.  Mackenzie,  269 

Aclieson  i:.  Fair,  3(59 

Ackland  v.  Lutley,  150,  308,  311,  348 
V.  PrinjT,  289 

Acroyd  r.  Smith,  142 

Acocks  V.  Phillips,  313,  321,  394,  742, 

808 

Acton  V.  Blundell,  708,  715 

V.  Pritcher,  19 

Adams  v.  Andrews,  714 

V.  Dunscath,  781 

V.  Gibney,  4,  172,  173,  076 

V.  Grane,  441 

V.  Hagger,  88 

Agar  V.  Young,  547 

Agard  v.  King,  155 

Agricultural  Cattle  Insurance  Co. 

V.  Fitzgerald,  199 

Ah  earn  v.  Bellman,  345 

Alchorne  r.  Gomme,  52,  267,  425 

Alcinous  V.  Negren,  73 

Alcock  r.  Wilshaw,  755,  805 

Aldenburgh  v.  Peaple,  453 

Aldridge  v.  Howard,  533 

Aleberry  i\  Walby,  531 

Alexander  v.  Sizer,  63,  64 

Alford  V.  Vickerv,  334,  343,  354,  356, 

413,  418,  420,  538,  553 

Allan  V.  Gomme,  701,  717 

Allason  v.  Stark,  32,  540 

Allen  V.  Allen,  630 

V.  Babbington,  678 

V.  Bennett,  88 

V.  Bryan,  252 

V.  England,  236 

V.  Flicker,  480 

V.  Hill,  230 

V.  Kennet,  799 

V.  Sharp,  499,  501 


PAGE 

Alley  i;.  Deschamps,  115 

Allhusen  v.  Brooking,  86,  728 

Alloway  r.  Steere,  276 

Alston  V.  Scales,  734 

Ames  V.  Birkenhead  Docks  Trus- 
tees, 59 
Amfield  v.  White,            655,  556,  568 
Ancketill  v.  Baylis,                           225 
Anderson  v.  jMartindale,                   KiO 
V.  Midland  Kail.  Co.,       133,  134, 
226,  227,  228,  237,  419,  492 
V.  Oppenheimer,                         682 
V.  Radclifte,                                132 
Andrew  v.  Hancock,        414,  560,  668 
V.  Pearce,  4 
Andrews  v.  Di.xon,                            494 
V.  Hailes,                            742,  80(i 
r.  Paradise,                         680,  683 
V.  Wood,                                       390 
Angell  V.  Duke,                                    87 
;;.  Randall,                                   378 
Angerstein  v.  Handson,                     175 
Ankerstein  r.  Clark,                          428 
Ansley  v.  Wadsworth,                      404 
Anstey  r.  Hobson,                                41 
Anthony  v.  Brecon  Markets  Co.,  675 
Apothecaries  Co.  v.  Fernyhough,  188 
Appleby  r.  Myers,                             161 
Appleton  V.  Binky,          "                     63 
V.  Campbell,                      226,  533 
0.  Doily,                                       424 
V.  Morrey,                                    833 
V.  Murray,                          353,  741 
Archbold  v.  Scully,  368,466,  533,548 
Archdeacon  r.  Jenner,                      619 
Arden  r.  Council,                              553 
V.  I'ullen,                             173,  595 
V.  Sullivan,                         221,  268 
Arkwright  i:.  Gell,                             712 
Arlett  V.  Ellis,                     59,  685,  696 
Arnall,  Er  parte,  Re  Wilton,           280 
Arnison,  Ex  parte,                             320 
Arnitt  v.  Garnett,                      491,  494 
Arnold  v.  Bidgood,                              50 
V.  Poole  (Mayor),                       16 
V.  Ridge,                               58,  272 


XXXll 


TABLE  OF  CASES  CITED. 


[References  are  to  tbe  star  paging.] 


P.\GE 

PAGB 

Arnsby  v.  Woodward 

108 

2G5, 

319 

Backhouse  v.  Bonomi, 

734 

Arran 

(Count)  V.  Cri 

sp, 

556 

Bacon  r.  Gyrling, 

179 

Arum 

el  (Earl  of)  i-. 

Gray, 

300 

V.  Smith, 

611 

r. 

Steere, 

695 

Badeley  v.  Vigurs,    253 

255, 

264, 

299 

Arunf 

ell  f.  Trevill, 

502 

Badger  v.  Ford 

59, 

696 

Asli  (■ 

Wood, 

516 

V.  Shaw, 

642 

Aslicroft  V.  Bourne, 

836, 

839 

Badkin  v.  Powell, 

475, 

503 

Aslier 

V.  Whitlock, 

697 

Baggally  v.  Pettitt, 

167 

Ash  lit 

Id  V.  Ashfield, 

38,61 

Bagge  V.  Mawby, 

486 

Asliinore  ;-.  Hardy, 

468 

Baggott  V.  Oughton, 

208 

Asliton  V.  Jones, 

70 

Bagot  V.  Bagot, 

604 

Aspdin  V.  Austin, 

176 

Bailes  v.  Wenman, 

158 

Astle> 

(-•.  Weldon, 

300, 

391 

Bailey  v.  Mason, 

324 

Asvlum   for  Female 

Oi 

phans  i\ 

V.  Stephens, 

685 

"iVa 

erlow, 

98 

V.  Sweeting, 

88 

Atherston  v.  Bostock 

94 

V.  Teunant, 

387 

Atkins  V.  Humphrey, 

289, 

291, 

542 

Baily  v.  l)e  Crespigny, 

172, 

238, 

6(50 

Atkin 

son  V.  Fell, 

648 

Bain  v.  Brand, 

48 

V. 

Kinnier, 

391 

V.  Cooper, 

134 

Attack  V.  Braniwell, 

453, 

462, 

523 

Baines  v.  Ewing, 

92 

Attoe 

V.  Heniniings, 

255, 

379 

r.  Woodfall, 

103 

Att.-Gen.  v.  Brooke, 

37 

Baird  v.  AVilliamson, 

715 

V. 

Cand)ridge 

Consumers' 

Baker  v.  Davis, 

565 

Gas  Co., 

583 

?'.  Dening, 

92 

V. 

Christ  Church 

Oxford, 

37 

V.  Gostling, 

264 

539 

V. 

Clarendon, 

78 

r.  Greenhill, 

556 

561 

V. 

Cox, 

198, 

306 

r.  Hoitzapffell, 

408 

562 

592 

V. 

Cross, 

37 

V.  Meryweatlier, 

19(J 

V. 

Davey, 

37 

V.  Kicliardson, 

183 

V. 

Foley  (Lord), 

228 

Balder  v.  Blackborn, 

40 

V. 

Freeman, 

48 

Ball  V.  Culliniore, 

227, 

228 

229 

V. 

Fullerton, 

615 

Ballard  r.  Dyson, 

699 

V. 

Glyn, 

16,  70 

V.  Way, 

107 

V. 

Great  Yarmouth, 

17 

Balls  V.  Westwood, 

547 

V. 

Hotham, 

137, 

215 

Bally  V.  Wells, 

1(54 

V. 

Lewin, 

32 

Bandy  v.  Cartwright, 

674 

V. 

Ma<rdalen  Collej^e,  Oj 

ford 

37 

Bankart  ?•.  Tennant, 

103 

V. 

Matthias, 

685 

Banks  v.  Pebbeck, 

237 

811 

V. 

Owen, 

3. 

'),  37 

Banner  v.  .Johnson, 

280 

V. 

Payne, 

37 

Bannister  v.  Hyde, 

462 

V. 

Portlantl, 

204 

r.  Usborne, 

53() 

V. 

Sbcflfield  Gas  Co. 

583 

Barber  v.  Dixon, 

696 

V. 

Shield, 

565 

Barbour  r.  Barlow, 

813 

V. 

Stephens, 

549 

Barclay,  Ex.  parte. 

620, 

641, 

642 

Aubin 

V.  Holt, 

98,  Oi), 

108 

V.  Paine, 

163 

Aubrey  v.  Fisher, 

617 

Barden's  case, 

752 

Au'^ustein  v.  Challis, 

494, 

496 

Bargent  i'.  'I'homson, 

327 

Aurio 

r.  Mills, 

271, 

407 

Barker  c.  Banks, 

657 

Auwo 

rth  r.  . Johnson, 

597, 

611 

V.  Bark(  r. 

599 

A  veline  v.  Whisson, 

189 

r.  liichardson, 

687 

Avenc 

11  V.  Croker, 

4(54 

Barkworth  r.  Young, 

88 

Avery 

V.  Cheslyn, 
Griffin, 

630 
110 

Barlow  r.  'I'eal, 
V.  llhodes. 

33() 
82 

Avowry's  case, 

488 

Barnard  r.  Cave, 

112 

Axford  !'.  I'errctt, 

5(10 

r.  (Jods.aii, 

261 

281 

V.  Leigii, 

270 

B. 

Barnes  c  Dowiing, 

610 

\\.\rn 

!•.  Meats, 

460. 

471 

V.  Ward, 

730 

Haclit 

lour  and  Gcorg 

c's 

case, 

404 

Barnelt  v.  Guildford  (E 

arl), 

132 

732 

TABLE   OF   CASES   CITED. 


XXXIU 


[References  are  to  the  star  paging.] 


PAGE 

Barnett  v.  Wheeler,        100,  243,  246 
Barnfather  v.  Lee,  559 

Barnwell  v.  Harris,  247 

Barr  v.  Glover,  821 

Barrett  v.  Bedford  (Duke),  557 

Barrow  v.  Scammell,  90 

Barrs  v.  Lea,  5(5(5 

Barry  v.  Glover,  313,  742 

r.  Goodman,  231,  2(58 

Bartlett  v.  Baker,  73(5 

V.  Smith,  .      187 

Barton  v.  Banks,  247 

V.  Dawes,  135,  183 

V.  Rock,  69,  430 

Barwick  v.  English  Joint  Stock 
Bank,  64 

d.  Mayor,  &c.  of  Richmond 
V.  Thompson,  215 

Bascomb  v.  Phillips,  107,  108 

Basket  v.  Scot,  146 

Bassett  v.  Lewis,  151 

Basten  v.  CJarew,  472,  836,  839 

Bastin  v.  Bidwell,  368 

Bateman  v.  Allen,  43 

V.  Farnsworth,  496 

Bates  V.  Beaufort  (Duke),  438 

Batcson  v.  Green,  685,  697 

Batli's  (Bishop  of)  case,  153, 154, 158 
Bathurst  v.  Burden,  613 

Battishill  v.  Reed,    686,  700,  707,  732 
Baudelay  v.  Brook,  141 

Bauman  v.  Matthews,  113 

Baumann  v.  James,  90,  91,  92,93, 

103,  104 
Baxter  v.  Taylor,  733 

Bayley  v.  Bondley,  542 

V.  Bradley,  538 

V.  Fitzmaurice,  90,  92,  154 

Baylis  v.  Dineley,  38,  70 

V.  Le  Gros,        168,  198,  311,  319, 
587,  593,  601 

V.  Usher,  405 

Bayly  v.  Tyrrell,  118 

Bayne  v.  Walker,  592 

Baynes  v.  Smith,  442 

Baynham  v.  Guy's  Hospital,  364,  366, 

367 
Beadel  v.  Pitt,  119,  565 

Beale  v.  Sanders,  128,  133,  544 

V.  Taylor's  case,  599 

Bealey  v.  Shaw,  712 

V.  Stuart,  176 

Beam  v.  Bloom,  694 

Beard  v.  Knight,  497 

Beardman  v.  Wilson,      124,  258,  261, 
262,  264,  539 
Beardmore  v.  Fox,  557 

Beardsworth  v.  Torkington,  (i86 

Bearpark  v.  Hutchinson,  288 


PAGE 

Beatson  v.  Nicholson,  101 

Beattie  i'.  Quirey,  2(50 

Beaty  r.  Gil)l)()n"s,  605,  755,  762 

Beau"fort  (Duke  of)  v.  Bates,  612,  674 
Beavan  i:  Delahay,         420,  438,  454, 
457,  755 
V.  Macdonell,  45 

Bock  V.  Denbigh,  439 

V.  Rebow,  629 

Becke  v.  Beaumont,  797 

Beckett  v.  Bradley,  214,  531 

Beckham  v.  Drake,  392 

Beddall  r.  Maitland,  741,  843 

Bedell  v.  Constable,  40,  426 

Bedford  Union  v.  Bedford  Com- 
missioners, 556 
Bedingfield  v.  Onslow,  738 
Beechey  v.  Quintery,  581 
Beeley  v.  Perry,                                 254 
Beere  v.  Windebanke,  83 
Bees  V.  Williams,                               305 
Beeston  r.  Stutely,                            112 
V.  Weate,                                    713 
Begbie  v.  Hayne,                              458 
Begott  V.  Orr,                                    695 
Beioley  v.  Carter,                             109 
Belanev  v.  Belaney,                         308 
V.  kelly,                                       296 
Belcher  v.  M'Intosh,                          589 
Belfour  v.  Weston,                   408,  592 
Bell  I'.  Midland  Rail.  Co.,               734 
I'.  Nixon,                                        81 
V.  Twentyman,                            734 
Bellasis  v.  Burbrick,                         534 
Bellingham  v.  Alsop,  11 
Bellringer  r.  Blagrave,                     110 
Belworth  v.  Hassell,                          247 
Bendyshe  v.  Pearce,                          429 
Benham  v.  Keene,                     192,  272 
Benjamin  v.  Andrews,                        82 
Bennett's  case,                                    492 
Bennett  v.  Bayes,     414,  415,  416,  417 
V.  Herring,            2,  252,  262,  318, 
593,  603 
V.  Ireland,                  408,  552,  592 
V.  Lytton,                                     294 
V.  Reeve,                                    691 
V.  Robins,                                     429 
Bennett  v.  Womack,       120,  122,  205, 
382,  555,  664 
Bennison  i'.  Cartwright,                   687 
Benson  v.  Chester,                     81,  691 
Bentley,  Ex  pnrfe,                             642 
Berkeley  v.  Hardy,                   190,  528 
Bermingham  r.  Sheridan,                247 
Bermondsey  Vestry  v.  Brown,          77 
Bern  v.  MaUaire,                                502 
Bernard  v.  Meara,                              105 
Berrey  v.  Lindley,    128,  221,  339,  351 


XXXIV 


TABLE   OF   CASES    CITED. 


[References  are  to  the  star  paging.] 


Berriman  i'.  Peacock,  .       617 

Berry  v.  Taunton,  GGl 

Bertie  v.  Beaumont,  2o6 

Beslev  i-.  Besley,  077 

Bessell  r.  Landsbercr,      299,  301,  302, 
o34,  541,  550 
Betbell  >•.  Blencowe,         18(3,  334,  339 
Bettesworth  v.  Dean  and  C.  of 

St.  Paul's,  108 

Bevan  r.  Ilabgood,  52,  203 

Beverley    v.    Lincolnshire    Gas 

and  Coke  Co.,  536,  540,  545 

Beverley's  case,  45 

Bevil's  case,  488 

Bewick  c.  Winglield,  618 

Bevtagh  v.  Cassedy,  700,  705 

Bible  ('.  Hassey,  491,  494 

Bickett  V.  Morris,  710 

Bickford  v.  Parson,  252 

Bidder   v.   Trinidad   Petroleum 

Co.,  613,  638 

Biggin  /'.  Bridge,  381 

Biggott  V.  Birtles,  449 

Biggins  V.  Goode,  464,  526 

Bigiiell  V.  Clarke,  474 

Billiiigliurst  r.  >Spearman,        290,  292 

Binckes  v.  Pash,  705 

Birch  V.  Dawson,  629 

V.  Stephenson,  140,  391 

V.  AVright,  13,  155,  229.  338, 

536,  543 

Bird  V.  Baker,  144,  150,  151,  156,  161, 

190,  358 

V.  Defonville,  333,  345,  550 

V.  Elwes,  5r)7,  595 

V.  (Jreat  Eastern  Rail.  Co.,      126 

77.  Higginson,         15,  83,  546,  718 

Birkbeck  <\  Pagett,  719 

Birmingham    Gaslight  Co.,   Ex 

parte',  283,  432 

Bisco  V.  Holt,  19 

Bishop  r.  Bedford  Charity,  737 

r.  Rryant,  480 

/•.  Elliott,  630,  637 

r.  (ioodwin,  383 

r.  Howard,  222,  542,  808 

■  Bissett  V.  Caldwell,  442 

Hi^sill  r.  Williamson,  81(i 

I'.hukett  i'.  Bates,  113,  117 

Blailes  r.  Arundale,  443 

V.  Higgs,  724 

Blagden  r.  Bradbear,  91 

Blake,  Er  parte,  M'Ewan,  In  ro,     284 

V.  Blake,  370 

V.  Dove,  798 

r.  Foster,  10,  532 

r.  Phinn,  100,  '24(i,  2(;5 

Hlakesley  v.  Wheildon,  119 

Hlanchard  »•.  Haker,  709 


PAGE 

Blanchard  v.  Bridges,  704 

Bland  v.  Lipscombe,  684,  695 

Blandford  v.  Marlborough,  556,  558 
Blatchford  v.  Cole,  149,  152,  211,  421, 

745 

V.  Plymouth  (Mayor),  180,  680 
Blaxton  c.  Heath,  44,  286 

Bleakley  v.  Smith,  89,  92 

Blewett  V.  Millett,  370 

Bliss  V.  Collins,  401 

Blore  V.  Sutton,  62,  90,  92 

Blount  V.  Pearman,  185 

Blunden  v.  Baugli,  13 

Blytli  V.  Dennett,  355,  356,  420 

Boardnian  v.  Mostyn,  206 

Boase  v.  Jackson.  185 

Bogg  V.  Midland  Rail.  Co.,  367 

Bolton  V.  Totnlin,  127 

Bond  V.  Rosling,  95,  98,  128,  132 

Bonnewell  v.  Jenkins,  105 

Boodle  V.  Cambell,  400,  401,  409,  547 
Boone  v.  Eyre,  167 

V.  Mitchell,  185 

Booth  V.  A'Beckett,  387 

V.  Alcock,  706 

V.  Macfarlane,  746 

Bootheroyd  v.  Woolley,  220 

Boraston's  case,  158 

Boraston  v.  Green,  755,  761 

Borgnis  v.  Edwards,  590 

Borrough's  case,  321 

Boulcot  i\  Winmill,  696 

Boulton  V.  Canon,  262 

V.  Reynolds,  416 

Bourne  v.  Liverpool  (Mayor),  673 
Bousher  v.  Morgan,  80 

Bowen  v.  Evans,  618 

r.  Hughes,  534 

Bowers  v.  Ni.xon,  379,  391 

Bowes  V.  Croll,  221 

V.  East  London  W.  W.  Co.,     204 

V.  Law,  6()5 

Bowker  c.  Hiirdekin,  190 

r.  Stewart,  371 

Bowser  r.  Colby,  331 

V.  Profaze,  462 

V.  Shorrock,  (!42 

7'.  M'Micliael,  640,  64(i 

Boyle  r.  Tandyn,  615 

Boys  V.  Ancell,  392 

?•.  Ayerst,  92 

Brace  v.  Wehncrt,  113 

Bracey  r.  Carter,  650 

Bradliee  r.  Christ's  Hospital,  615 

Bradburn  i-.  Foley,  754 

Bradburnc  v.  Hotficld,  160 

Bradbury  v.  Wright,       376,  377,  413, 

55(i 
liradford  (Earl)  r.  Komney  (Earl)  217 


TABLE   OF   CASES    CITED. 


XXXV 


[lieferencos  are  to  the  star  paging.] 


Bradley  v.  Baylis,  225 

Bradsliaw  v.  Ilyre,  82 

Bradsworth  v.  Torkington,  090 

Brady  v.  Wilson,  570 

Bradyll  v.  Ball,  28:^ 

Bragg  V.  Wiseman,  1,  173 

Braithwaite  r.  Cooksey,  427,  454 

Bramley  v.  Chesterton,  741 

Bramston  v.  Robins,  397,  414,  559 

Braniwell  v.  Lacy,  067 

Branding  v.  Kent,  475 

Brandon  v.  Brandon,  429 

Branscomb  v.  Bridges,  414,  405 

V.  Scarborough,  620 

Brashier  v.  Jackson,  b'75 

Brawley  v.  Wade,  254 

Breed  v.  Green,  .398 

Brennani  v.  Hood,  423 

Brennan  v.  Bolson,  100 

Brereton  v.  Tuohey,  304 

Brewer  v.  Eaton,  320 

V.  Hill,  80,  131 

V.  Pocock,  294 

Brewster  r.  Kidgell,  184 

V.  Kitchell,  171,  557,  508 

V.  Kitchen,  555,  550 

Briant  v.  Pilcher,  078 

Bridges  c.  Blanchard,  704 

V.  Hitchcock,  300 

V.  Longman,  009 

V.  Potts,  333,  347,  405 

V.  Smyth,  420 

Bridgland  v.  Shapter,  79,  82 

Briggs  /.'.  Sowry,  432,  443 

Bringloe  i\  Goodson,  215,  548 

Brisbane  v.  Dacres,  501 

Briscoe  r.  Drought,  707 

Bristol  Corporation  >\  Westcott,    001 

Bristol  (Dean  and  Chapter  of) 

V.  Guyse,  291 

Bristol  (Dean)  v.  Jones,  108,  594 

Brittin  v.  Vaux,  202 

Broadbent  v.  Ramsbottom,      707,  715 

Brocklehurst  v.  Lawe,  283 

Brocklesby  r.  Munn,  ()12 

Brocklington  r.  Saunders,  221,  704 

lirockman  r.  Honywood,  507 

Brodie  v.  St.  Paul,  91 

Brogder  i\  Met.  R.  Co.,  103 

Broke  v.  Smith,  159 

Bromley  v.  Holder,  472 

Brook,  Ex  parte,  Roberts,  In  re,     280 

V.  Biggs,        '  208,  548 

V.  Fletcher,  057 

V.  Goring,  300 

V.  Hewitt,  118 

Brooke  v.  Bulkeley,  103 

V.  Garrod,  115 

V.  Noakes,  471 


PAGE 

Brookes  v.  Davies,  399 
V.  Foxcroft,  11 
Brooks  r.  Drysdale,         120,  121,  122, 
100,  182 
Brown  v.  Arundell,  441 
Bailey  &  Dixon,  In  re,  433 
V.  Best,  711 
V.  Burtinshaw,  302,  333 
V.  Burton,  101,  190 
r.  Cocking,  811,  824 
V.  Crump,  175 
i\  Glenn,  401 
V.  Joddrell,  45 
V.  London  (Mayor),  171 
V.  Metropolitan  Counties  So- 
ciety, 421,  428 
V.  Notley,  738 
V.  Owen,  417 
V.  Powell,  416 
V.  Quilter,  409,  682 
V.  SheviU,  434,  441 
V.  Sligo  (Marquis),   111,  112,  117 
v.  Storey,                  52,  53,  55,  425 
V.  Symons,  337 
v.  Tighe,  305 
V.  Trumper,  154,338,339,589,590 
V.  Turner,  723 
Browne  v.  Dawson,  741 
V.  Dunnery,  453,  484 
Browning  and  Beeston's  case,  43 
V.  Dann,  401 
Brownlow  v.  Hewley,  532 
Brudnell  v.  Roberts,  9 
Brudnell's  case,                 157,  158,  296 
Brunton  v.  Hall,  699,  701 
V.  Winwood,  215,  697 
Buck  V.  Nurton,  141 
Buckby  v.  Coles,  703 
Buckland  i\  Butterfield,  602 
V.  Hall,  118 
V.  Papillon,         118,  121,  270,  309 
Buckley  r.  Buckley,  828 
V.  Pirk,  292 
V.  Porter,  291 
V.  Taylor,  453 
Buckmaster  v.  Harrop,  100 
Buckworth  r.  Simpson,  188 
Budd  V.  Marshall,  558 
Budloss  V.  Phillips,  390 
Bulfin  V.  Dunne,  203 
Bull  V.  Hutchens,  246 
r.  Parker,  417 
V.  Sibbs,  534,  542 
Bullcn  V.  Denning,  179 
BuUer's  case,  465 
Bullock  V.  Dommit,  592 
Bulwer  v.  Buhver,  230,  751 
Bunch  r.  Kennington,  440,  442 
Bunn  V.  Channen,  692 


XXXVl 


TABLE   OF   CASES    CITED. 


[References  are  to  the  star  paging.] 


BuTchell  V.  Clark,  129, 

V.  Hornsby, 
Burden  v.  Kennedy, 
Burdett  v.  Withers, 
Burjjess  v.  Boetefeur, 
Burleigh  v.  Stibbs, 
Burling  v.  Read, 
Burnaby  v.  Barsby, 
Burnby  v.  Bollett, 
Burne  v.  Cambridge, 

V.  Richardson, 
Burnett,  In  re, 

V.  Lynch,  161, 

Buron  v.  Denman, 
Burrowes  v.  Gradin,  51,  219, 
267, 
Burt  V.  Haslett, 
Burton  v.  Barclay,  254,  261, 
308, 

V.  Brown, 

V.  Dickenson, 
Bury  V.  Pope, 
Bush  V.  Coles, 
Busiiell  V.  Beavan, 
Buskin  c.  Edmunds, 
Bute  (Lord)  v.  Grindall, 

r.  Tiiompson, 
Butler  and  Baker's  case, 

V.  Meredith, 

V.  Mulvihill, 

r.  Swinnerton, 
Buttermore  v.  Hayes, 
Buttery  v.  Robinson, 
Byron  v.  Acton, 

C. 

CABALLEno  ?•.  Hent}', 
Cadby  c.  Martinez,  ]oG,  348, 
Cadman  r.  Horner, 
Cadogan  v.  Kennett, 
Caldecott  v.  Smitiiies,      138, 
Callingham  r.  Callingham, 
Calvaleiro  r.  I'liget, 
Calvert  v.  Joliffe, 

V.  Sebright, 
Camden  (Marquis) 


145,  382 
611 
270 
589 
588 
129 
741 
74 
647 
11 
422 
294 

261,  529 
342 

224, 254, 

338,  343 
649 

263,  306, 

309,  372 
140 
343 
686 

158,  163 
528 
321 
571 
382 

423,  426 
801 
46 
680 
241 
429 
110 


349, 


740, 


491 


Batterli 
530. 


urv, 
537 


V.  Morton, 
Campbell  v.  Lewis,  163,  261 

V.  Loader, 

V.  Lord  Wenlock, 

r.  Wilson, 
Cannan  v.  HnrtUy,  299, 


Cannock  i\  Jones,   150,  168, 

Cantrell  ?;.  Windsor  Union, 
Cape  V.  Scott, 


303 
160, 


241 

,  358 
106 
402 

,  753 
106 
198 

,  495 
680 

386, 
538 
409 
683 
816 
174 
685 
542 
170, 
594 
540 
090 


PAGE 

Capel  V.  Buszard,  456,  457 

Capenhurst  v.  Capenhurst,  162 

Capron  v.  Capron,  405 

Cardigan  v.  Armitage,  180 

V.  Montague,  203,  206,  207 

Cardwell  v.  Lucas,  189,  252 

Carlisle  (Mayor)  v.  Blamire,    15,  287 

V.  Whaley,  194 

Carlton  v.  Bowcock,  215,  253 

Carlyon  v.  Lovering,  685,  709 

Carmarthen  v.  Lewis,  83 

Carnarvon  (Earl)  ?;.  Villebois,        301 

Carpenter  v.  Collins,  229,  230 

V.  Cresswell,  167 

V.  Parker,  34,  55,  680,  683 

Carr  v.  Benson,  126,  669 

V.  Lambert,  691 

i\  Levingston,  92 

Carrick  ?•.  Blagrove,  532 

Carrington  r.  Roots,  94 

Cartan  v.  Burv,  99,  116 

Carter  v.  Carter,  399,  523,  568 

V.  Ely  (Dean  &  C),  116 

V.  Hughes,  271 

V.  Warne,  259 

Cartwright  v.  Millar,  90 

V.  Smith,  469 

Cart  Wright's  case,  11 

Carver  v.  Richards,  200 

Cary  v.  Cary,  765 

V.  Matthews,  503 

Casberd  v.  Att.-Gen.,  263 

Cashell  r.  Wright,  707 

Castleman  c.  I  licks,  476 

Catling  V.  King,  89 

Cattm  r.  Caton,  92,  100 

Catt  r.  Tourle,  664,  672 

Cattley  v.  xVrnold,  220 

Caudell  v.  Shaw,  285 

Chadwick  r.  Clarke,  186 

V.  Maden,  63 

Challoner  ;•.  Davis,  308 

Chaloner  v.  Bolckow,  573 

Chambers  r.  Kingham,  310 

Champernon  r.  Champcrnon,  55(5 

Chancellor  r.  Poole,  161,  262 

Chandler  r.  Doulton,  4(i4,  526 

Chandos  (Duke  of)  r.  Talbot,        616 

Channon  v.  Patch,  606,  617 


Chanter  v.  Dickenson, 

Chaplin  v.  Sonthgate,  

Chapman  r.  Beecliam,  Itr  Chap- 
man &  Ilobbs,       *        151,  425,429 

V.  Rluck, 

i\  (!lia])man, 

r.  De  'i'astct, 

V.  Rothwell, 

V.  Towner, 

V.  Turner, 


94 

681 


132 
396 
650 
739 


133,  3.!1) 
132 


TABLE   OF   CASIiS    CITED. 


XXXVU 


[References  are  to  the  star  paging.] 


Chappell  V.  Gregory, 
Cliarlewood  v.  Bedford  (Duke), 


Cliasemore  v.  Richards, 
Cliatfield  v.  Parker, 
Chauntler  v.  Kobinson, 
Clieesrnan  v.  Ilardliaiu, 
Clieetham  v.  Hampson, 


(507 


709. 


cm. 

614 


Cheshire     Lines     Committee     v. 
Lewis,  155, 

Ciiester  v.  Wortley  and  Cole, 

Chesterfield    and    Midland    Silk- 
stone  CoUry.  Co.   v.  Bolton, 
V.  Hawkins, 

Chesterman  v.  Mann, 

Chew  V.  Holroyd, 

Chichester  v.  Lethbridge, 

Chil<;ote  v.  Jouldon, 

Child  V.  Chamberlain,    458,  47G, 

V.  Comber, 
Chinnock  r.  Ely  (Marchioness), 
Chowne  r.  Baylis, 
Christ's  Hospital  v.  Harrild,  376, 

Christie  v.  Winnington, 
Christry  v.  Tancred,        543,  549, 
Church  I'.  Brown,  91,  1*20,  121, 

Churchill  r.  Evans, 

Churchward  v.  Ford,  585, 536, 537, 

V.  Sheddy, 
Claridge  v.  Mackenzie,    214,  269, 
Clark  V.  Arden, 

V.  Cogge,  81,  82, 

V.  Crownshaw, 

V.  Gaskarth,  436, 

Clarke  v.  Calvert, 

V.  Davies, 

V.  Dickson, 

V.  Fuller,     62,  88,  90,  92,  96, 

V.  Glasgow  Assurance  Co., 

V.  Hart, 

V.  Holdford,      378,  439,  480, 

V.  Hougham, 

V.  Millwall  Dock  Co., 

V.  Moore,  93,  112,  116, 

V.  Roche, 

V.  Roystone,  603, 

I'.  Smith, 

V.  Sydenliam, 

V.  Tinker, 

V.  Westrope,  762, 

Clarkson  v.  Scarborough, 

V.  Woodhouse, 
Clavering  v.  Clavering, 
Clay  V.  Shackeray, 

V.  Southern, 

V.  Thackrah, 
Claydon  v.  Green,        114, 


598 

88 

714 

272 

735 

,  693 

,  738 

,334 

802 

592 
159 
115 
814 
702 
831 
480, 
483 
88 
97 
47 
556, 
5(i8 
190 
743 
656, 
659 
615 
,541 
724 
396 
61 
702 
639 
437 
437 
502 
64 
127 
592 
641 
646 
399 
441 
219 
188 
762 
389 
152 
692 
765 
404 
697 
607 
686 
63 
686 
244 


PAGE 

Clayton  v.  Blakey,  127,  133,  341 

V.  Corby,  684,  701 

V.  Gregson,  136 

V.  Illingworth,  98 

Clayton's  case,  150 

Cleaton  v.  Gower,  111 

Clegg  V.  Edmondson,  370 

Clement  v.  Milner,  450,  458 

Clements  v.  Lambert,  142 

V.  Welles,  265,  677 

Clench  v.  Dr.  Arenburg,  226 

Clennel  v.  Read,  560,  568 

Clerk  r.  Berwick  (Mayor),  519 

V.  Clerk,  11 

V.  Palady,  535 

Clermont  v.  Tasburgh,  106 

Clifford  V.  Turrell,  91 

V.  Watts,  383 

Clifton  V.  Walmsley,  137 

Climie  v.  Wood,  624 

Clinan  v.  Cooke,      62,  90,  92,  93,  112 

Cline's  Estate,  Re  406 

Clive  I'.  Beaumont,  104 

Close  V.  Wilberforce,  264 

Clossy,  Re  148 

Clow  V.  Brogden,  600 

Clowes  V.  Hughes,  234 

Clun's  case,  394,  403 

Coal  Consumers'  Association,  In 

re,  433 

Coates  V.  Collins,  158 

Cobb  V.  Bryan,  512 

V.  Carpenter,  540 

V.  Stokes,  221,  339,  746 

Cockburn,  Ex  parte,  re  Smith,        159 

Cocker  v.  Cowper,  714 

V.  Musgrove,  492,  495 

Cockerell  r.  Owerell,  228 

Cockin  V.  Heathcote,  144 

Cocking  V.  Ward,  95,  242 

Cockson  V.  Cock,  163 

Codd  r.  Brown,  754 

Coe  V.  Clay,  675,  683 

Coffgan  V.  Warwicker,  545 

Coghill  V.  Freelove,  289,  291 

Colbron  v.  Travers,  565 

Colby  V.  Gadsden,  112 

Cole  V.  Forth,  608 

V.  Green,  608 

V.  Sury,  395 

V.  West  London  &  Crystal 

Palace  Rail.  Co.,  139 

Cole's  case,  163 

Colebeck  v.  Girdlers'  Co.,  698 

Colegrave  v.  Dias  Santos,  640 

Coleman  v.  Bathurst,  719,  721 

17.  Foster  (Bart.),  126 

Coles  V.  Pilkington,  101 

V.  Trecothick,  62,  92 


XXXVUl 


TABLE    OF  CASES    CITED. 


[References  are  to  the  star  paging.] 


PAGK 

Coll  V.  Coventry,  426 

CoUen  V.  Gardiner,  62 

V.  "Wright,  63 

Colles  V.  Evanson,  298,  299 

Collett  V.  Curling,      91,  333,  395,  551 

Colley  V.  Streeton,  599 

Collier  r.  M'Bean,  109 

V.  Mason,  106,  113 

V.  Nokes,  394,  453 

Collins  and  Harding's  case,  400 

V.  Barrow,  173 

r.  Blantern,  161 

V.  Collins,  113 

V.  Crouch,  162,  292 

V.  Harding,  84,  402 

r.  Sillve,  662 

V.  Weiler,  8,  9 

V.  Wilmott,  95 

CoUison  I'.  Lettsom,  165 

Colville  V.  Hall,  317 

Colyer  v.  Speer,  494 

Combe's  case,  63 

Comrains  r.  Scott,  89 

Commons  v.  Marshall,  201 

Conan  r.  Kemise,  163 

Congham  v.  King,  264 

Congleton  (Mavor)  v.  Pattison,     164 

165 

Connolly  v.  Connolly,  48 

Connor  v.  Bentley,  514 

Const  r.  Ward,  508 

Constable  v.  Constable,  406 

i;.  Nicliolson,  77 

Cooch  V.  Goodman,  128, 188, 189,  252 

Cook  V.  Booth,  366 

V.  Cook,  492 

V.  Enchmarsh,  799 

I'.  Gregson,  292 

V.  Gucrra,  255,  395 

V.  Humber,  225 

V.  Moylan,  50,  212,  2G7,  546 

!•.  Rosslyn  (Earl),  496 

V.  Waugh,  107,  1 10 

Cooke  V.  Loxley,     214,  253,  268,  547 

807 
V.  Wilson,  63,  64 
Coomlie  ?'.  Greene,  169,  595 
Coomber  v.  Howard,  91,  395 
Coombs  r.  Beaumont,  642 
Cooj)i'r,  A'.r  jxirte,  re  North  Lon- 
don Kail.  Co.,  34,  203,  210 
V.  Blandy,  547,  549 
V.  Crabtree,  733 
V.  Hood,  91 
V.  IIubl)uck,  687,  700,  705 
V.  Marshall,  690 

V.    l'hil)l)H,  .",()9 

V.  Robinson,  150,  190 

V.  Smith,  88 


PASB 

Cooper  I'.  Twibell,  393,  672 

Copland  i\  Laporte,  530 

Copley  r.  Hepworth,  132 

Copper  Mining  Co.  v.  Fox,     104,  341, 

345,  545 

Corbett,  Ex,  Shand,  Re,  284 

?•.  Howden,  52 

Cornfoot  V.  Fowke,  04 

Cornish  v.  Cleife,  169,  591 

r.  Searall ,    267,  268, 269,  308, 538 

V.  Stubbs,  9,  755 

Cornewall  v.  Dawson,  719 

Cornwell,  app.,  Sanders,  resp.,       723 

Corpe  r.  Overton,  70 

Corrigan  r.  Woods,  546 

Cort  I'.  Birkbeck,  716 

r.  Sagar,  183 

Corus  V. ,  679,  683 

Cory  V.  Bristow,  125 

V.  Corj',  46 

Cosser  v.  Collinge,  91,  265 

Coster  V.  Cowling,  185 

r.  Wilson,  472,  473 

Costigan  v.  Hastier,  109,  110 

Cotesworth  v.  Spokes,  320,  323 

Cother  v.  Merrick,  385 

Cotsworth  V.  Bettison,  488 

Cottee  V.  Richardson,  131,  144 

Counter  tk  Macpherson,  110 

Coupland  v.  Arrowsmith,  91,  102 

V.  Hardingham,  739 

V.  Maynard,  420 

Courtauld  v.  Legh,  705 

Cousins  V.  Harris,  569 

V.  Phillips,  372 

Cowan  V.  Milbourn,  96,  198,  533 

Coward  v.  Gregory,  167,  594,  600 

Cowell,  Ex  parte,  642 

Cowen  V.  Pliillips,  128,  132,  731 

Cowlam  V.  Slack,  692 

Cowley  V.  Suiulerland  (Mayor),       76 

V.  Watts,  103 

Cowling  I-.  Higginson,  699 

V.  Fletcher,      11,  12,  49,  422,  427 

Cox  V.  Bailey,  467 

V.  Bent,              133,  222,  228,  419 

V.  Bishop,  257,  264 

V.  Brain,  80 

V.  Knight,  539,  549 

V.  Leigh,  491 

V.  Mi(hik>ton,  90 

V.  Painter,  477 

Coxc  I'.  Day,  206 

Crabtree  v.  Robinson,  462 

Cramer  v.  Mott,  463 

Oane  v.  Batten,  654 

V.  Tayh)r,  20 

Crawk'y  c.  I'rice,  182,  656 

Creak  v.  Brighton,  836 


TABLE    OF   CASES    CITED. 


XXXIX 


[References  are  to  the  star  paging.] 


PAGE 

PAGE 

Cripps  V.  Blank, 

537, 

538 

Dane  v.  Kirkwall, 

72, 

551 

Crisdee  v.  Bolton, 

392 

Danford  v.  McAnulty, 

804 

Crisp  V.  Churchill, 

533 

Daniel  v.  Anderson, 

702, 

704 

Croft  r.  London  &  County  Bank- 

r. Gracie, 

376, 

379, 

418 

ing  Co., 

332 

V.  Hill, 

158 

V.  Lumley,        312,  322, 

355, 

356, 

V.  Stepney, 

412 

6G0,  068 

802 

808 

c.  Woodroffe, 

799 

Crofts  V.  Haldane, 

704 

Daniels  r.  Davison, 

89, 

229, 

240 

Cronnnellin  P^state, 

201 

V.  Potter, 

739 

Cromwell  v.  Andrews, 

394 

Dann  i-.  Spurrier, 

155 

178, 

358 

Cromwell's  case. 

140 

Dansey  v.  Richardson, 

226, 

843 

Croombe  r.  Lediard, 

111 

Darby  c.  Harris, 

434, 

438, 

623 

Cropp  V.  H  umber  ton, 

394 

f.  Whittaker, 

113 

Crosbie  v.  Tooke, 

118 

Dare  v.  Heathcote, 

699 

Crosier  v.  Tonikinson, 

441 

Dargan  r.  Davies, 

473 

Cross,  In  re, 

37 

Darling  v.  Clue, 

700 

V.  Eglin, 

139 

Darlington  v.  Hamilton 

100, 

112, 

V.  Jordan, 

320, 

796 

246, 

265 

V.  Lewis, 

685, 

706 

V.  Pritchard, 

213 

Crossfield  i'.  Morrison, 

171 

Darrell  v.  Tibbits, 

652 

Crossley  v.  Liglitovvler, 

606, 

710 

Darwin  v.  Upton, 

706 

Crouch  V.  Tastolfe, 

397 

Danbury  v.  Lavington, 

235, 

796 

V.  Tregonning, 

261 

Davenant  c.  Salisbury, 

656, 

558 

Crowder  v.  Self, 

465 

Davenport  r.  Reg., 

322 

Crowley  v.  Vitty,    219,  224, 

299, 

351, 

V.  Walker, 

116 

634 

814 

Davidson  v.  Cooper, 

108, 

199 

Crowther  v.  Ramsbotham, 

465 

478 

Davies  r.  Aston, 

449. 

451 

Crusoe  i'.  Bugby, 

659 

I'.  Connop, 

761 

Crux  V.  Aldred, 

392 

V.  Edmonds, 

■495 

Cubitt's  case, 

424 

j;.  Eyton, 

275, 

315 

Cubitt  V.  Porter, 

614 

V.  Fitton, 

112 

Cuckson  r.  Winter, 

458 

V.  Jones, 

190 

Cudlip  V.  Hundall, 

227 

r.  Powell, 

439 

Culling  V.  Tuft'nall, 

627 

V.  Sear, 

82 

142 

CuUwick  ('.  Swindell, 

625 

V.  Stacey, 

386 

Cumberland  r.  Bowes, 

763 

V.  Underwood, 

601 

Cumberland's  (Countess)  case. 

616 

V.  Vernon, 

248 

Cumming  v.  Bedborough, 

560 

564 

V.  Williams, 

688 

707 

Curling  u.  Mills, 

141 

Davis  r.  Burrell,       317 

559 

741 

742 

Curtis  V.  Spitty, 

264 

547 

I'.  Edwards, 

531 

V.  Wheeler,                   13 

224 

422 

V.  Eyton, 

752 

Cust  V.  Middleton, 

33 

V.  Gyde, 

414 

Cuthbertson  v.  Irving,        2, 

213, 

214, 

V.  Hone, 

99 

253,  263,  409 

531 

532 

I'.  Jones, 

190 

622 

629 

Cutting  i>.  Derby,             343 

394 

745 

V.  Morgan, 
V.  Nisbett, 
I'.  Pen  ton, 

542 
247 

546 
657 
392 

D. 

V.  Shepherd, 
Davison  v.  Gent, 

105 
304 

Daglish,  Ex  parte, 

641 

V.  Stanley, 

299 

301 

Daintry  v.  Brocklelmrst, 

733 

V.  Wilson, 

741 

Dalby  i'.  Hirst,                  604 

753 

764 

Davy,  Ex  parte. 

839 

845 

Dale  V.  Lister, 

111 

Dawe  V.  Cloud, 

459 

Dallman  v.  King, 

169 

Dawes  v.  Dowling, 

645 

Dalston  v.  Reeve, 

532 

Dawson  ?;.  Cropp, 

486 

Dalton  V.  Whittem,434,  438 

623 

646 

V.  Dyer, 

182 

678 

Dames  v.  Heath, 

183 

V.  Fitzgerald, 

726 

Dampier  v.  Pole, 

183 

V.  Lamb, 

542 

Dancer  v.  Hastings, 

429 

V.  Linton, 

661 

xl 


TABLE   OF   CASES    CITED. 


[References  are  to  the  star  paging.] 


PAGE 

PAGE 

Day  V.  Austin, 

G29 

Doe  V.  Adams, 

317 

V.  Duberley, 

286 

V.  Alexander, 

321 

V.  Fynn, 

139 

V.  Allen, 

312,  322,  325,  669 

i\  Luhke, 

114 

V.  Allsopp, 

194 

Dayrell  v.  Hoare, 

202,  720 

V.  Amey, 

55,  128,133,221, 

Dcakin  v.  Fenniall, 

188 

311,351 

Dean  v.  Allalk-y, 

621,  637 

V.  Archer, 

336,  346,  358 

V.  Cartwright, 

337 

V.  Baker, 

333,  343 

Deane  v.  Clayton, 

724 

i\  Bancks,    2C 

,  198,  312,  316,  669 

De  Brassac  v.  Martyn, 

98 

V.  Barber, 

232 

Dec-harms  v.  Ilorwood, 

12 

V.  Barton, 

52,  53,  54,  267 

Delaney  v.  Fox,        214 

267, 

409,  829 

V.  Bateman, 

258,  317 

De  Medina  v.  Norman, 

95.  244 

V.  Batten, 

324,  356,  390,  749 

V.  Poison, 

228, 

538,  551 

V.  Bay  ley. 

340,  347 

De  NicoUs  v.  Saunders, 

255, 395 

V.  Bell,       127 

128,  219,  221,  228, 

Denby  r.  Moore, 

561, 

565,  568 

333,  351 

Dendy  v.  Niclioll, 

322, 

323,  355 

V.  Bcnhani, 

375,  414 

Denn  v.  Cartwright, 

155 

V.  Benjamin, 

306 

V.  Dolman, 

311 

V.  Benson, 

137,  382 

V.  Fearnside, 

204,  228 

V.  Bevan, 

275,  276,  661 

V.  Hopkinson, 

137, 

348,  382 

V.  Biggs, 

338,  349 

V.  Kemeys, 

130 

V.  Birch,     137 

,  198,  313,  322,  324 

V.  Kawlings, 

223,  340 

V.  Birchmore, 

802 

V.  Walker, 

318 

V.  Bird, 

590,  618,  647,  667 

Dennett  v.  Atherton, 

677 

V.  Blakeway, 

312 

Dennis,  Re, 

148 

V.  Bliss, 

312,  316,  663,  669 

Denton  r.  Eichniond, 

321 

V.  Bluck, 

339 

Derby  (Earl)  v.  Taylor 

> 

259 

V.  Bold, 

341,  540 

Derisley  v.  Custance, 

288 

r.  Bond, 

315,  587 

Deslandes  v.  Gregory, 

64 

IK  Bousfield, 

61,62 

Devine,  E.r  parte, 

283 

V.  Boulton, 

339,  341 

Devonsliire  (Duke  of) 

I'.  Barrow 

V.  Bowditch, 

181,310,314, 

Hematite  Steel  Co., 

573 

320,  796 

Dibble  r.  Bouater, 

394 

453,  468 

V.  Brawn, 

270 

Dick  r.  Tolhausen, 

549 

r.  Brayne, 

805 

Dickinson     v.     Grand 

Junction 

r.  Brett, 

228,  231 

Canal  Co., 

709 

r.  Bridges, 

22,  301 

Digby  ?;.  Atkinson, 

223,  592 

V.  Brindley, 

324,  325,  587,  602, 

Dilkes  ?•.  Broadmead, 

294 

794 

Dimuh  v.  Corlett, 

391 

V.  Bromley, 

805 

Dinimock  v.  Hallett, 

112 

V.  Brown, 

152,  211,  212,  268, 

Din.'idale  v.  Isles, 

144 

228,  229 

790 

Direct  Spanish  Telegraph  Co.  v. 

V.  Browne, 

128,  332 

Shepherd, 

583,  588 

V.  Brydges, 

322 

Dixon  r.  Baty, 

806 

V.  Bucknell, 

52,  53,  55,  223,  341, 

V.  Harrison, 

421,  423 

361 

V.  James, 

689 

V.  Burlington  (Earl  of),           608 

V.  Smith, 

491 

V.  Burrough, 

207 

Dobbyn  r.  Somers, 

79,82 

V.  Burt, 

136,  141 

Do1)ell  >\  Hutchinson, 

92 

r.  Burton, 

237,  360,  805 

D<)l)ie  r.  Larkin, 

533 

V.  Butcher, 

8 

Dobson  c.  Blackmore, 

733 

V.  Butler, 

349 

Dod  V.  Monger, 

488 

V.  Byron, 

319 

Dodd  r.  Acklotn, 

303,  306 

V.  Cadwallader,                   53,  233 

V.  Burchell, 

142 

,  702,  714 

V.  Calvert, 

204,  205,  350,  356 

V.  Morgan, 

4<i3 

I'.  Carew, 

136,  181,  314 

r.  Saxby, 

491 

r.  Carter, 

13,  24,  64,  228,  363, 

Dod.son  V.  Sanmiell, 

293 

660 

Doe  i>.  Abel, 

182 

,  358,  674 

V.  Cartwright, 

181 

TABLE   OF   CASES   CITED. 


xli 


[References  are  to  the  star  paging.] 


Doe  V. 


PAGE 

PAGE 

Catamore, 

184 

Doe  V.  Gladwin, 

265, 

312,  324,  320, 

Cavaii, 

199,  205 

328,  655,  808 

Cawdor  (Earl), 

3(31,  302 

V.  Glenn, 

288,  308 

Chainberlaine,  ■ 

237,  340 

V.  Godwin, 

314 

Chambers, 

15 

V.  Goldsmith, 

317,  318 

Cliaplin, 

848 

V.  Goldwin, 

235 

842,  345,  747 

Church, 

340 

V.  Goodier, 

233,  341 

Clare, 

01 

V.  Gower,     32 

224, 

882,  300,  361 

Clarke,  158 

231, 

275,  290,  003 

V.  Graflon, 

333,  350 

Clifford, 

800 

V.  Graton, 

225 

Clifton, 

213 

V.  Green,     154 

155 

220,  337,  347 

Cockell, 

32,  338 

V.  Groves, 

227 

Coombs, 

187 

V.  Grubb, 

860,  361,  362 

Cooper, 

301,421,801 

V.  Guest, 

91, 

121,  177,  604 

Corbett, 

339 

V.  Guy, 

49,  287 

Courteney, 

300,  301 

V.  Halcombe, 

212 

Cox, 

227 

228,  232,  729 

V.  Hales, 

52,  233,  341 

Crago, 

133,  222,  223 

V.  Hall, 

355,  806 

Creed, 

389,  802 

V.  Hare, 

399 

Crick, 

344, 

345,  353,  354, 

V.  Harrison, 

807 

350,  357 

V.  Harvey, 

887,  389 

Crouch, 

018 

V.  Hawke, 

663 

CuUiford, 

852 

V.  Hazell, 

340 

Cuthell, 

542 

V.  HcUier, 

61,  312,  691 

Danvers, 

312 

V.  Helling, 

342 

David, 

310 

I'.  Hilder, 

272,  342 

Davies, 

234,  235,  310, 

V.  Hiley, 

82,  540 

413,  803 

V.  Hinde, 

375 

Day,        150 

185 

197,  204,  235 

V.  Hodgson, 

792 

Derry, 

131 

V.  Hogg, 

000 

Dixon, 

155,  358 

V.  Horn, 

885,  849,  614 

Dobell, 

833,  334,  351 

V.  Home, 

213 

Dodd, 

132,  145 

V.  Houghton, 

185 

Donovan, 

833,  335,  352 

V.  Howard, 

350 

Donston, 

270 

V.  Huddart, 

803 

Dunbar, 

353 

V.  Hughes,  53, 

343, 

350,  352,  803 

Durnford, 

853,  003 

V.  Humphrey, 

356 

Dyson, 

320 

V.  Hunt, 

176,  857 

Edgar, 

237,  340 

V.  Ingleby, 

316 

Edwards, 

50, 

146,  207,  209, 

I'.  Inglis, 

339,  346,  356 

317,  548,  798 

V.  Jackson, 

237, 

345,  588,  747 

Elsam, 

312,  000 

V.  Jameson, 

802 

Errington, 

11 

V.  Jenkins, 

4 

Evans, 

2 

360,  301,  061 

V.  Jepson, 

315,  794 

Eykins, 

325 

V.  Johnson, 

151,  324,  350, 

Flynn, 

311,  360 

351,  877 

Forwood, 

301 

338,  342,  352 

V.  Johnston, 

303,  334 

Foster, 

32, 

342,  343,  340, 

V.  Jones,      58, 

228, 

270,  312,  324, 

349,  540 

340,  590 

603, 

055,  742,  808 

Francis, 

343 

V.  Keeling, 

666 

Frankis, 

267 

V.  Kennard, 

170 

182,  674,  805 

Franks, 

320,  808 

V.  Kightley, 

347,  352 

Frowd, 

231, 

300,  301,  302 

t'.  King, 

805 

Fuchau, 

320 

V.  Kneller, 

313,  370 

Galloway, 

140 

V.  Knight, 

190 

Gee, 

800 

V.  Lamb, 

349 

Geeckie, 

154 

155,  219, 224 

V.  Lambley, 

350 

Gilbert, 

203 

V.  Laming, 

654,  600 

Giles, 

341 

V.  Lawder, 

228, 

238,  339,  341 

xlii 


TABLE   OF   CASES    CITED. 


[References  are  to  the  star  paging.] 


PAGE 

PAGE 

Doe  V.  Lawrence, 

159,  317 

Doe  V.  Powell, 

215,  311,  659 

V.  Lea, 

223,  347,  348,  351 

V.  Price, 

229,  619 

r.  Leach, 

805 

r.  Prideaux, 

223,  230 

V.  Leatherheac 

209 

V.  Pritchard, 

47,  316,  322 

r.  Levi, 

344,  354 

i\  Pullen, 

238 

V.  Lewis, 

52,  318,  325,  331, 

V.  Pyke, 

306 

341,  602,  805 

V.  Quigley, 

231,  341 

r.  Lightfoot, 

235 

V.  Radcliffe, 

388 

V.  Lines, 

348,  351 

V.  Raffan, 

334, 

339,  340,  351 

V.  Litherland, 

363 

I'.  Ranisbottom 

9 

214 

V.  Lloyd, 

69,  79,  84,  380,  387 

V.  Read, 

343 

V.  Lock, 

159,  178,  179 

V.  Rees, 

316, 

322,  323,  742 

V.  Long, 

360,  361,  362 

V.  Reid, 

673 

V.  Lucas, 

354 

V.  Rendle, 

200,  208 

r.  Maberly, 

287 

r.  Rhodes, 

350 

V.  M'Kaeg, 

228,  230,  340 

V.  Rhys, 

801 

V.  Maniby, 

220,  223,  333 

V.  Richardson, 

150 

V.  INLiisey, 

341 

V.  Rickarby, 

662,  806 

r.  Marchetti, 

206,  314,  372 

I'.  Ridout, 

302 

1-.  Massey, 

697,  742 

V.  Roberts, 

38,  220,  363 

r.  Masters, 

319,  796,  808 

V.  Robinson, 

342,  344 

V.  Matthews, 

208,  348,  350 

V.  Rock, 

227,  228,  237 

V.  Meux, 

168,  323,  593,  602 

V.  Rogers, 

34,  389 

V.  Meyler, 

401 

V.  Rollings, 

4, 

360,  361,  362 

V.  Miles, 

339 

V.  Rugeley, 

171 

r.  Miller, 

237 

V.  Rugeley  (CI 

urchwardens. 

V.  Mills, 

360 

&c.), 

172,  668 

V.  Milward, 

299,  301,  303,  334, 

V.  Samuel,  152 

223 

338,  347,  351 

347,  350 

V.  Sandham, 

200 

V.  Mitchell, 

268,  423,  807 

V.  Sayer, 

231,  339,  341 

V.  Mizem, 

343,  802 

r.  Scott, 

340 

V.  Moffatt, 

55,  222,  339,  351 

r.  Seaton, 

10,  103,  214 

V.  Morphett, 

349,  352 

I'.  Selwyn, 

152 

I'.  Morris, 

61,  697 

V.  Shadwell, 

360 

V.  Morse,        9 

,  210,  223,  230,  351 

V.  Sharpley, 

359,815 

V.  Moyes, 

742 

V.  Shawcross, 

321 

?'.  Murreli, 

237,  742 

V.  Shewin, 

654 

V.  Nainby, 

155,  337 

V.  Skirrow, 

52, 

130,213,214 

V.  Noden, 

338 

V.  Smaridge, 

155, 

220,  223,  231, 

V.  Old, 

326 

333,  337 

V.  OUey, 

233,  341 

V.  Smith,  164, 

200, 

221,  267,  269, 

V.  Ongley, 

55,  213,  223,  317, 

270,  276, 

339, 

349,  350,  852 

344,  345 

V.  Smythe, 

807 

V.  Osborne, 

134 

V.  Snowden, 

203,  350 

V.  Owen, 

272 

i\  Somerton, 

353 

r.  Oxcnham, 

455 

I'.  Somerville, 

836 

V.  Palmer, 

184,  356 

?".  Spence, 

850 

V.  ]*arker. 

360 

V.  Spiller, 

852 

V.  Parry, 

272 

V.  Spry, 

666 

V.  Pasquali, 

360,  361 

V.  Stagg, 

299 

ji.  Paul, 

322,  304 

V.  Stanion, 

237,  304,  361 

V.  Payne, 

(i(i2 

V.  Stanton, 

236,  797,  801 

V.  Peck, 

324,  055,  808 

V.  Stapleton, 

152 

V.  Perrin, 

348 

V.  Steel, 

349,  356 

V.  Phillips, 

182,  228,  310,  340, 

V.  Steele, 

144, 

227,  340.  808 

074,  796,  806 

i\  Stennett, 

608 

V.  Pittnian, 

361,  362 

V.  Stephens, 

206,  208 

V.  I'oole, 

;!01 

V.  Steven, 

314 

V.  Porter,    220 

289,  336,  338,  363 

V.  Stone, 

213 

TAI5LE   OF   CASES    CITED. 


xlilL 


[References  are  to  the  star  paging.] 


Doe  V.  Stradling,  236,  797,  801 

V.  Stratton,  221,  231,  339 

V.  Strickland,  59 

V.  Sturges,  49,  287 

V.  Sumiiiersett,  11,  156,  343,  359 
V.  Sutherland,  802 

t'.  Sutton,  588,  602,  655 

V.  Taniere,  9,  20,  128,  133,  210, 
219,  341,  345 
V.  Tatchell,  49 

V.  Terry,  32,  338,  342 

V.  Thomas,  19,  20,  34,  199,  22(5, 
228,  229,  274, 297, 413 
V.  Thompson,  54,  55,  91,  214 

V.  Tidbury,  697,  742 

V.  Timothy,  349 

V.  Tindal,  805 

V.  Tom,  233,  341 

V.  Tressider,  62 

V.  Turford,  354 

V.  Turner,  229,  231 

r.  Ulph,  117,  150,  654,  655 

V.  Vince,  348 

V.  Wainwright,  805 

V.  Walker,  211,  309,  421 

V.  Walters,  342,  344 

V.  Wandlass,  320,  321 

V.  Ward,  335,  351 

V.  Watkins,  344,  347,  350,  353, 
354 
V.  Watt,  182,  313 

V.  Watts,  8,  9,  210,  223,  230,  335, 

351,  662 
V.  Webster,  135,  139 

r.  Weller,     8,  9,  43,  55,  223,  230, 

335,  351 
V.  Wells,  360,  806 

V.  Wharton,  58,  272 

V.  White,  201 

V.  Whitroe,  215 

I'.  Whitt,  267 

V.  Whittick,  360 

V.  Wiggins,  268,  541,  548,  807 
V.  Wilkinson,  231,335,347 

V.  Williams,  137,  180,  206,  344, 
347,  363,  742,  806 
V.  Wilson,  321 

V.  Withers,  202 

V.  Wonibwell,  349 

V.  Wood,   220,  225,  227,  305,  338, 

340,  3()3 
V.  Woodbridge,  324,  669,  808 
V.  Woodman,  341,  344,  354 

V.  Worsley,  659 

V.  Wrightman,  344,  347,  353 

V.  Wyndham,  216 

V.  Yarborough  (Lord),  20,  24 
Doherty  v.  AUman,  606 

Dolby  V.  lies,  541,  549 


Dollen  )•.  IJatt,        287,  2 

Dolling  V.  Evans, 
Dolorct  r.  Hothschild, 
Donellan  v.  Read, 
Doran  v.  Carroll, 
Dormer's  ease, 
Dorrell  v.  Collins, 
Dossee  r.  East  I.  Co., 
Doughty  V.  Bowman, 

r.  Styles, 
Douglas  V.  Wiggins, 
Dowell  V.  Dew, 
Down  V.  Thompson, 
Downingham's  case, 
Downs  ('.  Cooi)er, 
Dowse  r.  Cale, 

V.  Earle, 
Drake  v.  Mitchel, 
Drant  v.  Browne, 
Draper  r.  Crofts, 

V.  Thompson, 
Dreesman  v.  Harris, 
Drew  V.  Bayly, 
Drewell  v.  Towler, 
Drewett  v.  Sheard, 
Druce  v.  Denison, 


PAGE 

!85,  530, 

531,  532 

90 

116 

88,  219,  386 

612 

796 

178 

227 

165 

58 

612 

101,  117 

651 

61,  62 

214 

591,  593 

591,  593 

398 

94,  104,  186 

543,  743,  -746 

460,  463 

513 

49 

717 

711 

286 


Drury  v.  Macnamara,  99, 128, 133,675 
V.  Molins,  613 

Drury  Lane  Theatre  Co.  r.  Chap- 
man, 83,  294,  540,  546,  553 
Duberly  v.  Page,  696 
Duck  V.  Braddyll,   185,  491,  492,  495, 

640 
Duddell  V.  Simpson,  265 

Dudden  v.  Clutton  Union,       707,  715 
Dudley  v.  Folliott,  679,  683 

V.  Warde,  627,  636 

Dugdale  i\  Robertson,  176 

Duke  V.  Ashby,  532 

Dnmergne  r.  Rumsey,  438,  637 

Dumper  v.  Syms,  661 

Dumpor's  case,  657 

Duncan  v.  Meikleham,  460 

Dungay  r.  Angove,  535 

Dunk  V.  Hunter,       133,  413,  417,  418 
Dunn  V.  De  Nuovo,  532 

V.  Sayles,  177 

V.  Spurrier,  8 

Dunraven  ?•.  Llewellyn,  692 

Duppa  V.  Mayo,  324,  394,  453 

Durell  V.  Pritchard,  97 

Durham    and    Sunderland    Rail. 

Co.  V.  Walker,  177,  701,  734 

Dyas  V.  Cruise,  62,  92,  388 

Dyer  v.  Carter,  703 

V.  Green,  183 

Dyke,  Ex  parte,  Re  Morrish,  280 

Dykes  v.  Blake,  244 


xliv 


TABLE   OF   CASES   CITED. 


[References  are  to  the  star  paging.] 


E. 


Eadie  v.  Addison,  122 

V.  Atkinson,  105 

Eadon  v.  Jcffcock,  176 

Eads  V.  Williams,  115 

Eagleton  v.  Gutteridge,  187,  199,  207, 

420 
Earle  i'.  Maugham,  561,  731 

East  V.  Harding,  60 

East  India  Co.  v.  Vincent,  8 

East  &  West  India  Dock  Co.  v. 

Hill,  281 

East  London  W.  W.  Co.  i-.  Mile 

End  Old  Town  Trustees,  135 

Eastcuurt  r.  Weeks,  61 

Easterby  v.  Sampson,  163,  256 

Eastern    Counties    Rail.    Co.    v. 

Broom,  503 

Easton  v.  Pratt,  61,  201,  202,  589 

Eaton  V.  Jaques,  161,  261,  407 

V.  Lyon,  306,  367 

V.  Southbv,  438,  442 

V.  Swansea  W.  W.  Co.,    087,  711 

Ecclesiastical  Commrs.  v.  Merral,     15 

Ecclesiastical  Commrs. of  Ireland 

r.  O'Connor,  380,  402,  410,  418 

Ecclcston  V.  Clipsham,  11 

Edgar  r.  Blick,  94,  186 

Edge  V.  Boileau,  678,  682 

V.  Strafford,  85,  128,  537 

Edgson  V.  Cardwell,  518 

Edmonds  r.  Eastwood,  379,  506 

Edmondson  r.  Nuttall,     413,  453,  520 

Edwards  v.  Dick,  20 

V.  Etherington,  173 

V.  Hodges,  837 

In  re,  120 

t'.  Jones,  55 

V.  Milbank,  201 

V.  Kecs,  382 

t'.  West,  374 

V.  Wickwar,       211,  254,  266,  307 

Edwick  r.  Hawkes,  672,  742 

Efford  V.  Burgess,  534 

Egerton  v.  Sheafe,  390 

Egremont  (Earl)  v.  Pulman,  743 

Eldridge  r.  Stacey,  461,  4()3 

Electric  Telegraph  Co.  v.  Moore,  537 

Elgar  !'.  Watson,  553,  744 

EUard  v.  Llandaff  (Lord),  107 

V.  Bishop,  620,  624,  639,  049 

V.  Ince,  45 

V.  Johnson,  252 

I'.  South  Devon  Rail.  Co.,       7(>7 

V.  Taylor,  415,  406 

Ellissr.  Elli.'is,  805 

Ellmore  r.  Kingscote,  91 

Elsey  V.  Liityens,  194 


Elston  V.  Rose, 
Elwes,  He, 

V.  Elwes, 

V.  Mawe, 
Elworthy  v.  Sanford, 
Embrey  v.  Owen, 
Emery  v.  Barnett, 
Emmet  v.  Dewlmrst, 
Empson  v.  Soden, 
England  v.  Cowley, 

V.  Slade, 

V.  Wall, 
Enys  V.  Donnithorne, 
Erish  I!.  Rives, 
Ernot  V.  Cole, 
Erskine  v.  A  dean e, 
Essex  V.  Capel, 
Etherton  v.  Popplewell, 
Evans,  In  re, 

i\  Bowen, 

V.  Curtis, 

V.  Davis, 

V.  Elliott, 


PAGE 

811,  824 

566 

217 

620,  625,  636 

248,  743 
708 

409,  813 
112 

618,  637 

464 

269 

699 

152,  160,  161 

60 

402 

87,  598 

725 

478 

294 

520 

676 


314,  323,  665 
52,  53,  55,  267,  415, 
425,  465 
V.  Evans,  541 

Ex  parte.  In  re  Watkins,  273 

V.  Mathias,  58,  59,  420 

V.  Vaughan,       144,  676,  678,  683 
V.  Walshe,  109 

r.  Whittingstall,  333 

V.  Wright,  482,  485,  524 


Wyatt, 
Evelyn  i\  Kaddish, 
Everett  )\  AVilkins, 
Ewart  t".  Coclirane, 

V.  Graham, 
Ewer  r.  Clifton, 
Exhall  Mining  Co.,  In  re, 
Eynsham's  case. 
Eyre  r.  Dolphin, 

V.  Shaftesbury, 


323 
593,  733,  738 

70 
713 
83,  179,  720 
398 
433 
581 
371 

40 


Eyton  c.  Denbigh,  &c.  Rail.  Co.,   433 


F. 

Faiiian  and  Windsor's  case,  322 

V.  Winston,  322 

Fairbrother  w.  Simmons,  243 

Fairburn  v.  Eastwood,  639 

Fairclaim  v.  Shamtitle,  801 

Fairfax  v.  Gray,  426 

Fairtitle  v.  Gilbert,  81 
Fallon  V.  Robins,  217,  358 
Falmouth  (Karl  of)  v.  Thomas,     753 

Farewell  !-.  Dickinson,  531 

r'armer  v.  Rogers,  298 

Farns worth  i'.  Garrard,  660 


TABLE    OF   CASES   CITED. 


xlv 


[References  are  to  the  star  paging.] 


PAGE 

PAGE 

Farrall  v.  Davenport, 

101 

Fletcher  v.  Wilkins, 

500 

V.  Hilditch, 

177 

Flight  V.  Bentley, 

254 

Farrance  v.  Elkington, 

749 

V.  Bolland, 

118 

Farrant  v.  Olniius, 

391 

V.  Booth, 

111 

244 

V.  Thompson, 

646 

r.  Clarke, 

533 

Farrer  v.  Nelson, 

719 

V.  Glossop, 

166 

Faulkner  v.  Johnson, 

503 

V.  Thomas, 

688 

704 

V.  Llewellyn,        09 

100 

102 

114 

Flinn  v.  Calow, 

135 

Faviel  v.  Gaskoin,    lo8. 

753, 

761 

784 

Flint  V.  Brandon, 

184 

Fawkcs  ('.  Joyce, 

450 

Flitters  r.  AUfrey, 

816 

Fay  V.  Prentice, 

734 

Foley  V.  Addenbroke, 

160, 

530, 

628, 

Fearon  v.  Norvall, 

814 

639 

645 

670 

Fell  v.  Whittaker, 

502 

525 

V.  Barnell, 

287 

Feltham  v.  Cartwright, 

714 

Folkard  r.  Ilemmctt, 

69(i 

Felthotise  v.  Bindley, 

104 

Folkingham  v.  Croft, 

65(! 

Female  Orphan  Asylvim 

,In 

■e, 

16 

Foote  V.  Berkeley, 

150 

151 

Fenn  v.  H-arrison, 

62 

F()(|uet  V.  Moor, 

93, 

219 

299 

r.  Smart, 

198, 

317 

319 

Ford  r.  Tiley, 

95 

Fenner  v.  Duplock, 

10 

269 

V.  Tynte, 

439 

Fenny  v.  Child, 

157 

Fordham  v.  Ackers, 

502 

507 

Fentiman  v.  Smith, 

714 

Foreman,  Ex  ])arte,  Price,  In 

re, 

279 

Fenton  r.  Clegg, 

49. 

287 

Forman  v.  Dawes, 

355 

V.  Logan, 

451 

Forrer  v.  Nash, 

99 

113 

247 

Feret  v.  Hill, 

64, 

198, 

665 

Forster  v.  Cookson, 

491 

495 

Ferguson  v.  Black, 

597 

V.  Rowland,            62,  88 

,92, 

104, 

V.  Cornish, 

155 

195 

196 

V.  Wilson, 

97 

Forsyth  v.  Jervis, 

185 

Festing  v.  Tayler, 

555 

565 

Foss  V.  Racine, 

567 

Few  I'.  Perkins,         1G9, 

587, 

593 

602 

Foster  v.  Mapes, 

679 

683 

Field,  In  re, 

123 

V.  Pierson, 

679 

683 

V.  Adames, 

442 

V.  Rowland,          95 

,  103 

127 

179 

V.  Mitchell, 

464 

Foulger  v.  Taylor, 

469, 

495 

497 

Fielden  \k  Slater, 

665 

Fovey  v.  Fletcher, 

566 

V.  Tattersall, 

764 

Fowell  (!.  Frank, 

156 

Filliter  v.  Phippard, 

651 

V.  Frantz, 

358 

Finch  V.  Miller, 

156 

417 

Fowkes  V.  Joyce, 

442 

V.  Underwood, 

366, 

368 

Fowle  V.  Welsh, 

679 

683 

Findon  v.  M'Laren, 

440 

Fowler,  In  re. 

78 

Finlay  v.  Bristol  and  Exeter  Rail. 

Fox  V.  Prickwood, 

204 

Co.,                 133,  222, 

341, 

345, 

545 

V.  Swann, 

661 

Firth  V.  Greenwood, 

0: 

},  92, 

115 

Frame  v.  Dawson, 

101 

V.  Purvis, 

415, 

466, 

489 

V.  Dowdeswell, 

821 

Fisher  v.  Algar, 

479 

V.  Wyatt, 

440 

V.  Dixon, 

625, 

627 

636 

Francis  r.  Harvey, 

214 

V.  Marsh, 

541 

Franklin  v.  Carter,  198 

,  420, 

543, 

505 

Fishmongers'  Co.  v.  Dimsdale, 

187 

Franklinski  r.  Ball, 

51,  52,  54, 

110 

Fishwick  v.  Milnes, 

467 

Frankum  v.  Falmouth 

(Earl), 

711 

V.  Vicars, 

90 

Eraser  v.  Skey, 

172 

Fitzgibbon  v.  Scanlan, 

369 

Freeman  v.  Cooke, 

647 

Fitzhardinge  (Lord)  v.  Pritchett, 

617 

V.  Jeffries, 

649 

Fitzherbert  r.  Shaw, 

621, 

640, 

644 

V.  Roslier, 

459 

523 

Fitzmaurice  v.  Bayley, 

63 

V.  AVest, 

146, 

204 

Fitzwilliani's  case. 

199 

French  r.  Patten, 

184 

Fleming  v.  Gooding, 

547 

V.  Phillips, 

465 

V.  Neville, 

194 

Freshfield  v.  Reed, 

209 

Fletcher  v.  Dyche, 

392 

Frewen  r.  Phillips, 

704 

V.  Manning, 

642 

Friar  r.  Gre^', 

170, 

358 

?;.  Marillier, 

468, 

469 

Frogley  v.  r>ovclace  (E 

arl), 

184 

V.  Ilylands, 

469, 

715 

Frosel  c.  Welsh, 

60 

xlvi 


TABLE   OF  CASES   CITED. 


[References  are  to  the  star  paging.] 


PAGE 

Frost  I'.  Knight,  95 

J!.  Moulton,  105 

Frusher  l'.  Lee,  481 

Fry  V.  Fry,  292 

Fryan  /;.  \Vetheread,  141 

Fryer  t:  Coombs,  209,  5:52 

Fryett  r.  Jeffreys,  324 

Fulder,  Ex  pai'te,  839 

Fuller  V.  Abbott,      208,  555,  561,  5(35 

V.  Fenwick,  392 

Furley  v.  AVood,  137,  348 

Furness  (•.  Meek,  190 

Furnival  v.  Coombes,  545 

V.  Crewe,  366 

Furnivall  v.  Grove,  173,  299,  302,  303, 

306,  359,  366,  550 

Fursdon  v.  Clogg,  538,  548 

Fury  V.  Smitli,  193,  194 


G. 


Gabell  v.  Shevell, 
Gage  V.  Collins, 

V.  Smith,  616, 

Gale  I'.  Bates,  605, 

Galgay  v.   Great   Southern   and 

Western  Hail.  Co., 
Galsworthy  v.  Strutt, 
Gambrell  v.  Falmouth,  465, 

Gamon  v.  Vernon, 
Gandy  v.  Jubber,  735, 

Gange  v.  Lockwood, 
Gardiner  v.  Colyer, 

V.  Williamson,  80, 

Ex  parte, 
Gardner  r.  Fooks, 
Garnett  v.  Bradley,  489, 

Garrard  r.  Frankel, 
Garratt  v.  liancefield, 
Garrett  r.  Sharp, 
Gartness  Iron  ("o.,  lie, 
Garton  v.  G.  W.  Kail.  Co., 
Gaskell  v.  King,  565, 

V.  Spry, 
Gaslight  &Coke  Co.  r.  Tlollowav, 

V.  Turner,  161,  198,  533, 


Gaston  r.  Frankum, 
Gatewaril's  case, 
Gatliercole  v.  Smith, 
Gauntlett  v.  King, 
Gaved  v.  ]\Tartyn, 
Gawlcr  v.  Chaplin, 
Gay  V.  Matlicws, 
Gayford  v.  MoiTatt, 
fiearns  v.  Baker, 
(jioddings  r.  Geddings 
Geeekie  v.  Monk, 
Gent  v.  Cults, 


71, 


451, 
689, 


562 
497 
619 
763 

715 
391 
486 
264 
739 
588 
720 
418 
116 

91 
516 
217 
294 
705 
434 
519 
728 
663 
780 
664 
718 
685 

97 
523 
708 
494 
500 
702 
719 
371 
219 
520 


PAGE 

499 
137 

493 

232,  515 

567 


George  v.  Chambers, 
Gerrard  v.  Clifton, 
Gethin  t'.  Wilks, 
Gibbs  V.  Cruickshank, 

V.  Stead, 

Gibs  V.  Hooper,  568 

Gibson  v.  Doeg,  669 

r.  Hammersmith  Rail.  Co.,     643 

V.  Holland,  88 

1-.  Ireson,  440 

V.  Kirk,  536 

V.  Wells,  610 

Giddens  v.  Dodd,  358 

Gie  V.  Rider,  300 

Gilbertson  v.  Richards,  146 

Giles  V.  Hooper,  160,  556 

V.  Spencer,  412,  453 

Gilham  v.  Arkwright,  469 

Gillingham  r.  Gwyer,  457 

Gilman  v.  Elton,  441 

Gimbart  i'.  Pelah,  475 

Girardy  v.  Richardson,  226,  533 

Giraud  v.  Richmond,  91 

Gisbourn  ;•.  Hurst,  440 

Gladman  v.  Plumer,    53,  55,  267,  420, 

425 
Glasgow  (Earl)  v.  Hurlet  Alum 

Co., 
Glegg,  Ex  Latham,  lie, 
Glen  V.  Dungey, 
Glover  r.  Cope,  278 

V.  Halkett, 

V.  Lane, 
Glynn   v.  Thomas, 
Godley  v.  Frith, 
Goff  ('.  Harris, 
Goode  ?'.  Burton, 

r.  Howells, 
Goodright  v.  Cater, 

i\  Cordwent, 

V.  Davids, 

v.  (Gregory, 

V.  :Mark, 

i\  Richardson, 

i\  Straphan, 

V.  Vivian, 
Goodson  V.  Gouldsmith, 
Goodtitle  v.  Bailey, 

r.  Funucan, 


V.  Herbert, 
V.  Morse, 
I'.  Paul, 
V.  Saville, 
?•.  Southern, 
Goodwin  r.  Chcveley, 
r.  ]>ongburst. 


176 
253 
537 
278,  280 
186 
696 
465,  525 
685,  698 
640 
248 
335,  347 
319,  796 
355,  356 
324,  662 
190 
156,  181,  184 
152, 155 
43,  190 
620 
596 
135 
20,  200,  202,  204, 
205,  206,  208,  21(> 
228,  340,  806 
213 
139 
619 
139 
450 
60,  61 


Goold    I-.    (ireat 
Coal  Co., 


Western    Deep 


14 


TABLE   OF   CASES   CITED. 


xlvii 


[References  are  to  the  star  paging.] 


PAGE 

Gordon  v.  Smart, 

117 

V.  Trcvelyan, 

90 

Gore  v:  Bowser, 

270 

V.  Gibson, 

46 

V.  Gofton, 

495 

V.  Lloyd, 

395 

Goreley,  E.r  partp. 

164 

,  651 

,729 

Gorton  v.  Falkner, 

435 

4;58 

451 

V.  Gregory, 

165 

,530 

Goss  V.  Nugent  (Lord), 

9 

3,  94 

Gott  V.  Gandy, 

\1?> 

595 

,598 

Gould,  Ex  jiarte,  Walke 

•,In 

re. 

275 

Gouldswortli  v.  Knights 

75 

,428 

Gourley  v.  Somerset, 

659 

Grace,  Ex  parte, 

71 

V.  Morgan, 

803 

Graham  v.  Peat, 

738 

V.  Tate, 

560 

V.  Wade, 

554, 

557 

569 

r.  Wiclielo, 

305 

Granger  v.  Worms, 

243 

Grant  r.  Ellis, 

378 

455 

V.  Gunner, 

69(5 

I'.  Oxford  Local  Board, 

125 

Grantham  v.  Thornborough, 

390 

Grattan  v.  Wall, 

532 

Gravenor  v.  Woodhouse 

268 

807 

Gray  v.  Bompas, 

542 

743 

V.  Chamberlain, 

395 

Great  Central  Gas  Consumers 

'Co. 

V.  Clark, 

583 

Great     Northern     Rail. 

Co 

.    I'. 

Mossop, 

820 

Great  Western  Rail.  Co. 

;.  Cripps, 

107, 

111 

Greatrex  v.  Hayward, 

710, 

712 

Green,  //;  re. 

293 

V.  Austin, 

496 

V.  Bridges, 

327, 

328 

r.  Eales, 

690, 

595 

V.  Edwards, 

144 

V.  Home, 

528 

V.  James, 

213, 

214 

V.  Kopke, 

m 

V.  Listovvcll, 

289 

V.  London  Cemetery 

Co. 

545 

r.  London  General  (Omnibus 

Co., 

503 

V.  Low, 

115 

V.  Price, 

391 

V.  Saddington, 

242 

V.  Smith, 

111 

V.  Wise, 

523 

Greenaway  v.  Adams, 

659 

V.  Hart, 

165, 

318, 

386 

Greene  v.  Cole, 

609, 

626 

Greenhow  v.  Isley, 

626 

PAGE 

Greenslade  v.  Halliday,  74 

V.  Tapscott,  391,  660 

Greenwood  v.  Tyber,  43 

Gregg  V.  Wells,  360,  647 

Gregory  v.  Doidge,  268,  269,  396 

V.  Mighell,  91,  101 

V.  Wilson,  100,  117,  328 

Grescott  v.  (ireen,  262 

Gresiiam    House    Estate    Co.   v. 

Rossa  Grande  Mining  Co.,  354 

Gretton  v.  Diggles,  263 

Grey  v.  Cuthbertson,  ]()4 

V.  Friar,  170 

Grey  de  Wilton  v.  Saxon,  613 

Griilenhoofe  v.  Daubuz,  585 

Griffin  v.  Griffin,  369,  370 

(•.  Scott,  479 

V.  Stanhope,  181,  184 

r.  Tomkins,  325,  669 

Griffith  V.  Hodges,  408 

Griffiths,  In  re,  71 

V.  Chiciiester,  398 

V.  Earl  Dudley,  432 

r.  Puleston,  454,  755 

V.  Stephens,  500 

r.  Tombs,  761 

Grimman  i'.  Legge,  302,306,406,408, 

550,  552 


Grimstead  v.  Marlow, 
Grimwood  v.  Moss, 
(irlssell  r.  Robinson, 
Groom  v.  Bluck, 
Groombridge  r.  Fletcher, 
Grosvenor  v.  Grosvenor, 

V.  Hampstead  Junction  Rail 
Co., 

r.  Sherratt, 
Grove,  Ex  parte, 
Gruffly  V.  Pindar, 
Grute  V.  Locroft, 
Grymes  v.  Boweren, 
Gubbins  v.  Creed, 
Gudgeon  v.  Bessett, 
Gullet  V.  Lopes,  Bart., 
Gulliver  v.  Burr, 

V.  Cozens, 
Gundry  v.  Feltham, 
Gunning  v.  Gunning, 
Gurr  V.  Scudds, 
Gutteridge  v.  Munyard, 
Guy  );.  West, 
Gwatkin  v.  Bird, 
Gwillim  i\  Stone, 
Gwinnell  i\  Earner, 
Gwinnett  ;•.  Phillips, 
Gwynne  v.  Maynestone, 
Gybson  v.  Searls, 


685,  700 
323,  454 
196 
260 
495 
247 


140 

78 

283 

616 

11,  44,  286 

630 

78 

103,  190,  537 

693 

338 

46, 454 

725 

130 

187 

589,  668 

613 

59 

675 

599,  736,  739 

465,  472 

154 

67,  80,  300 


xlviii 


TABLE   OF   CASES   CITED. 


[References  are  to  the  star  paging.] 


H. 


Haberdashers'  Co.  r.  Isaac, 
Haddon  v.  Arrowsmith, 
Had  ley  v.  Taylor, 
Haigh  V.  North  Brierly  Union, 
Haines  v.  Burnett, 

V.  Welch,  454, 

Haldane  v.  Johnson, 

V.  Newconib,  580, 

Hale,  Ex  parte,  Binns,  In  re, 

r.  Oldroyd,  710, 

Haley  v.  Hammerslev,  625, 

Hall  v.  Ball,  '  248, 

V.  Betty,  95, 

V.  Burgess,  304,407,536,542, 

V.  Butler, 

V.  City  of  London  Brewery, 


V.  Hall, 

V.  Harding,  424, 

V.  Lund, 

V.  Seabright, 

V.  vSwift, 

r.  Warren,  98, 

V.  Wright, 
Hallen  v.  K under,  620,  641, 

Hallifax  v.  Chambers, 
Halton  V.  Haywood, 
Hanierton  v.  Stead, 
Hamilton  r.  Buckmaster, 

V.  Clanricarde, 
Hammond's  case, 
Hammond  i-.  INIather, 
Hampshire  v.  Wickens,  120,  121, 

Hanbury  v.  Litchfield, 
Hancock  v.  Austin,   125,  376,  413, 

V.  Caffyn, 
Hand  r.  Hall, 
Ilandcock  r.  Foulkes, 
Hands  v.  Slancy, 
Hannier  r.  Cliance, 
llanmer  (Lord)  v.  Flight, 
Harbin  r.  Harton, 
H;irliri<lge  r.  Warwick, 
H,inourt  r.  Wynian,  44,  100, 

Harding  r.  Crethorn,  407,  542,741 

r.  ilall,  480,  484, 

V.  Precce,  277, 

v.  Wilson, 
Hnnloii  r.  Ilesketli,  540, 

Hardwickc  r.  Vernon, 
Hiirdy  r.  Sever, 
Hare  r.  lUirgess, 

V.  Cator, 

V.  (Jrovea, 

V.  llorton,  135,  100, 


656 
61 
739 
104 
122 
751 
307 
505 
283 
711 
640 
743 
244 
550 
269 
674, 
683 
119 
689 
173 
131 
712 
118 
161 
643 
175 
273 
305 
109 
62 
48 
320 
122. 
056 
111 
417, 
461 
676 
127 
526 
70 
716 
535 
11 
704 
745 
,  743 
540 
281 
142 
540 
78 
206 
360 
264 
40S 
(ilO 


FAGB 

Hargrave's  case,  291 

Harker  i'.  Birkbeck,  737 

Harlev  v.  King,  161 

Harmer  v.  Bean,       211,  254,  400,  547 


Harnett  v.  Maitland, 
V.  Yielding, 

Harper  v.  Taswell, 

Harrington  v.  Price, 
V.  Ramsey, 
r.  Wise, 

Harris,  E.r  parte, 


175,  610 
98,  246 
479 
248 
814 
296,  313,  383 
959 


Harris,  Ex  parte.  Re  Richardson,  280 
V.  Davison,  271 

V.  Evans,  155 

V.  Goodwyn,  161,  171,  261 

V.  James,  737 

I".  Jones, 
V.  Pepperell, 
V.  Shipvvay, 
V.  Thirkell, 

Harrison,  Ex  parte.  Re  Betts, 
V.  Barnby, 
i\  Barry, 
V.  Blackburn, 


V.  Good, 

V.  Jackson, 

V.  AVardle, 

V.  AVright, 
Harrow  School  v.  Alderton, 
Hart  V.  Leacli, 


589 
217 
308 
489 
233 
423 
444,  479,  402 
197,  298,  732, 
738 
668 
62,  190 
500 
390 
631 
483 


Windsor,  173,  174,  508 

Hartcup  v.  Bell,  52 

Hartis  v.  Beavan,  532 

Hartnell  v.  Yielding,  110 

Hartshorne  v.  Watson,  108,  258,  313, 
520,  547 
Harvey  r.  Barna'-  ^s  Inn,  105 


v.  Bridges, 

V.  Grabham, 

I'.  Harvey, 

V.  King, 

V.  Pocock, 

I'.  Reynolds, 
Harvie  v.  Oswel, 
Haselere  r.  Lemoync, 
Haslet  V.  Burt, 
Hasluck  !-.  Pedley, 
Hassell  (".  (Jowthwaite, 
Hastings    I'nion 

((Jiiardi.'ins  of), 
Hatch  r.  Hale, 
Hawkins  r.  (.'arbines, 

r.  Kelly, 

V.  Kemp, 

V.  l{utt, 

r.  Shcrmnn, 

I'.  A\'alrond, 

i;.  AVilliams, 


41 

93,  753,  763 

630 

262 

451 

607,  714 

324,  (>62 

344,  45i),  523 

(!37 

40(5 

321,807 

St.   James 

220,  333 
415,416 
609 
404 
200 
307 
601 
481 
289 


262,  529 


TABLE   OF   CASES   CITED, 


xli 


[References  are  to  the  star  paging.] 


Hawtrey  v.  Butlin, 
Hayes  v.  Bickcrstaff, 

t'.  Caryll, 
Ilayford  v.  Criddle, 
Hayling  v.  Oakey, 
Haylock  v.  Sparke, 
Hayne  v.  Cummings, 


PAGE 

642 
674,  678 
115 
265 
750 
«;56 
?,  128,  i;)2, 


181,  223,  311,  313,  601 
V.  Maltby,  162 

Hayton  Granite  Co.,  In  re,  434 

Hayward  r.  Parke,     95,  244,  246,  678 
Haywood    v.    Brunswick    Provi- 
dent Bonetit  Building  Society,  163 
V.  Cope,  89,  106,  110 

V.  Silver,  657 

Hazeldine  v.  Heaton,  259 

Heap  i\  Barton,  643 

Heaphy  v.  Hill,  115 

Heard  v.  Pilley,  62,  92,  127 

Hearn  v.  Allen,  141 

Hearne  r.  Tomlin,  237,  546 

Heath  v.  Elliott,  693 

Heatherley  v.  Weston,  11 

Heaven,  In  re,  433 

Heawood  i\  Bone,  447 

Hefford  v.  Alger,  487,  520 

Hegan  v.  Johnson,  133,  417 

Hegarty  ik  Milne,  94 

Heisir  v.  Grout,  187 

Hellawell  v.  Eastwood,   435,  438,  622 
Hellier  v.  Casbard,  160,  288,  291 

V.  Sillcox,  536,  542 

Hellini--  v.  Lumley,  98,  109,  111 

Helstone,  7?p,  811,  824 

Hemingway  v.  Fernandes,  163 

Henchett  v.  Kimpson,  491,  495 

Henderson  v.  Charnock,  335 

V.  Hay,  121 

V.  Hudson,  265 

V.  Hears,  408,  544 

V.  Squire,  407,  741 

Henning  v.  Burnet,  701,  717 

Hennings  v.  Brabason,     154,  337,  338 
Hensloe's  case,  288 

Henstead's  case,  11,  43,  230 

Herbert  v.  Laughhiyn,  695 

I'.  Maclean,  678 

Herbin  v.  Chard,  44,  286 

Hereford  (Bisliop)  v.  Scorey,  20 

Herlakenden's  case,  618,  625 

Hersey  v.  Giblett,  90 

Hewitt  V.  Isham,  179 

Hewlins  r.  Shippam,  698,  714 

Hewson  v.  South-Western  Rail. 

Co.,  140 

Hext  i>.  Gill,  180 

Heys  V.  Tindall,  64 

Hibblewhite  r.  M'Morine,  199 

Hickling  V.  Bowyer,  287 


PAGE 

Hickman  ;'.  Isaacs,  667 

V.  Machin,     52,  53,  267,  536,  538 

Hicks  V.  Downing,  254,  258,  264 

Hide  V.  Skinner,  865 

Higgins  V.  Sainels,  106 

V.  Senior,  6;5 

Higginson  v.  Clowes,  112 

Higham  r.  Kabctt,  699 

Hill,  E.r  j),irf<',  Roberts,  In  re,         283 

V.  Barclay,  1 16,  603,  647,  656 

V.  E.  &  W.  India  Dock  Co.,     279 

I'.  Grange,  141,  384,  3!»5 

V.  Kempshall,  319,  320,  796 

r.  Batten,  184 

V.  Ilamm,  467,  549 

V.  Saunders,  10,  43,  268,  285, 

531,  537 

V.  South  Staffordshire  Rail. 

Co.,  .              219 

V.  Tupper,  125,  716 

Hillman  r.  Mayhew,  9(» 

Hills  V.  Street,  483 

Hilton  V.  Green,  719,  726 

V.  Tipper,  97,  247,  659 

Hinchliffe  r.  Kinnoul,  142,  211,  703 

Hinchman  r.  Isles,  229 

Hinde  v.  Gray,  176 

Hindle  v.  Blades,  507 

V.  PoUitt,  605 

Hindley  ;..  Emery,  97,  113,  612 

Hine  r.  Dodd,  195 

Hinton  v.  Sparkes,  393 

Hirst  V.  Horn,  746,  790 

Hitchin  v.  Campbell,  549 

Hitch  man  v.  Walton,  645,  73:5 

Hobson  V.  Cowley,  304 

V.  Middleton,  681 

V.  Todd,  689 

Hoby  r.  Roebuck,  386 

Hodesdon  v.  Gresil,  690 

Hodges  I'.  Lawrence,  458 

Hodgkinson  v.  Crowe,  122,  588 

i\  Ennor,  715 

Hodgson  r.  Anderson,  398 

?'.  Carlisle  Local  Board,  570 

i\  Gascoyne,    «  492 

V.  Johnson,  242 

Hodson  ('.  Siiarpe,  193 

1-.  Walker.  81(! 

Hbgan  v.  Hand,  226 

Hogart  r.  Scott,  118 

Hogg  V.  Brooks,  359 

V.  Norris,  335,  382 

ITolcombe  v.  Hewson,  393,  672 

Holcroft  V.  Steel,  82 

Holder  i\  Coates,  617 

V.  Soulby,  226,  843 

r.  Taylor,  172 

Holding  V.  Pigott,  138,  761 


TABLE   OF   CASES    CITED. 


[References  :ire  to  the  star  paging.] 


Holford  V.  Hatcli, 


PAGE 

264,  265,  287, 
5o6,  542 
83,  546 
197,  402,  418 
414,  465 
104 


r.  Pritchard, 
Holgate  1-.  Kay, 
Holland  r.  Bird, 
f.  Eyre, 

V.  Kensington  Vestry,  134 

Holland  v.  Falser,  378 

Hoinian  v.  Exton,  148 

Holme  V.  Brunskcll,  216 

Holmes  ;'.  Bellingham,  698 

V.  Blosrg,  70 

V.  Elliott,  703 

(;.  Goring,  703 

Holt  V.  Collver,  668 

Holtzappfell  v.  Baker,  409,  592 

Holz  V.  lloebuck,  88 

Homes  v.  Pearce,  129 

Honeycomk  v.  Waldron,  194 

Honeyman  v.  Marryatt,  103, 104,  105 


Hood  V.  Barrington, 

V.  (jglander, 
Hool  V.  Bell, 
Hooper  r.  Clark, 

V.  Ramsbottom, 
Hopcraft  v.  Keys, 
Hope  r.  Atkins, 

V.  Bootli, 

V.  Gloucester  (Mayor), 

?'.  Hope, 
Hopkins  r.  Helmore, 
Hopkinson  v.  Lee, 

V.  Lovebridge, 
Hopper,  He, 
Hopwood  V.  Barefoot, 

V.  Sciiolield, 

V.  Wlialey, 
Horn  V.  Baker, 
Hornby  v.  Cardwell, 
Home  V.  Benbow, 

?'.  Lewin, 

V.  Mackenzie, 
Horner  r.  FlintolT, 

)•.  Graves, 
Hornidge  r.  Wilson, 
Ilorsefall  v.  Testw, 
Horseley  t\  Rush, 
Horsey  ?'.  Graham, 
Horsfali  v.  Davy, 

r.  Hey, 

?•.  IMatiier, 
Morsl'ord  r.  Webster, 
Hosking  v.  I'liillips, 
Hoskina  r.  Knight, 

V.  Robins, 
Hotham  v.  Hast  India  Co., 
Hotlcy  r.  Scott, 
Hougliton  '•.  K(rnig, 
How  V.  Greek, 


126,  103, 


378, 


88 

119 

427 

19 

248 

420 

135 

237 

364 

114 

384 

160 

276 

648 

556,  568 

733 

162,291,292 

622,  639 

265 

610 

414,  459 

710 

392 

392 

162,  291,  292 

1(59,  593 

62 

87.  89 

472 

641,646 

175,  597,611 

412 


493 

<!90 

135,  167 

205,317 

129 

189,  537 


How  V.  Kennett, 

r.  Whitfield, 
Howard  v.  Hodges, 

V.  Lovegrove, 

!'.  Shaw, 

V.  Wemsley, 
Howe  v.  Hunt, 

V.  Searrot, 

V.  Synge, 
Howell  V.  Kightle}', 

V.  Richards, 


PAGE 

219,  537 

203 

533 

601 

237,  538,  546 

347 

97,  110 

43,  428,  540 

555,  565 

055 

391 


Howells,  app.,  Wvnne,  resp.,  723 

Hewlett  r.  Tarte,'  216,  386 

Howse  V.  Webster,  291 

Howton  V.  Pearson,  82,  702 

Hudd  r.  Ravenor,  487 

Huddlestone  r.  Briscoe,  105 

V.  Woodroffe,  140 

Hudson  V.  Bartram,  116 

V.  Buck,  246 

V.  Hudson,  49 

?'.  Temple,  116 

r.  Williams,  591 

Hudspeth  r.  Yarnold,  94 

Huffell  V.  Armitstead,  224,  339 

Hugall  V.  McLean,  595 

Hughes  and  Crowther's  case,  157,296 

A'.r  parte,  78 

V.  Chatham,  236 

V.  Clark,  129 

r.  Hughes,  58,  268,  430 

V.  Lumlcy,  272 

V.  Macfie,  739 

r.  Metropolitan  Rail.  Co.,        593 

r.  Palmer,  197 

I'.  Parker,  88,  90 

1-.  Robothain,  308 

Hull  (Mayor,  &c.,  of)  v.  Horner,  686 

Hulme  V.  Teiniant,  118 

Humberstone  v.  Dubois,  749 

Humble  r.  Hunter,  63 

Hume  V.  Pejjloe,  532 

r.  Pocock,  246 

Humfrey  v.  Dale,  63 

V.  (iery,  455,  533 

Humphreys  i\  Franks,  335,  351 

Humphries  r.  Cousins,  738 

llungerford  r.  Clay,  52,  54 

Hunt  r.  Aligood,.  ."KJl 

1).  Bishop,     2,  167,  169,  239,  314, 

326,  595,  807 

j;.  Colson,  23(5 

V.  (\)pe,  409 

V.  Harris,  98,  731 

V.  Nove,  192,  193 

V.  Remnant,  2,  326,  595 

V.  Silk,  64 

Hunter  r.  no]K"toun  (Earl),  368 

V.  Nockold,  532 


TABLE  OF   CASES   CITED. 


li 


[References  are  to  the  Bti\T  paging.] 


PAGE 

PAGK 

Huntley  v.  Russell, 

621 

Jackson,  Ex  parte,  Bowes,  In  re,  234, 

Hurd  V.  Fletcher, 

683 

282 

Hurry  v.  Pocock, 

524 

V.  Cator, 

8,  108 

V.  Kickman, 

459 

523 

V.  ("obbin. 

664 

Hurst  V.  Hurst,          300 

392 

557 

762 

V.  Hanson, 

500 

Hussey  v.  Honie-Payne 

105 

V.  Jackson, 

113 

Hutchins  v.  Cluunbers, 

486 

V.  Neal, 

61 

V.  Martin, 

298 

300 

V.  Oglander,        88 

103 

104,  105 

V.  Scott, 

199 

384 

464 

V.  Pesked, 

734 

Hutcliinson  v.  Copestake, 

705 

V.  Shillito, 

700 

?'.  Kay, 

183 

640 

V.  Stacey, 

699,  701 

V.  Read, 

167 

r.  Stopherd, 

648 

Hutton  >\  Brown, 

224 

Jacob  V.  Kinir, 

480,  500 

V.  Warren,         138, 

175, 

223, 

603, 

Jacobs  V.  Seaward, 

611 

(i08. 

761 

764 

Jacomb  v.  Ilarwood, 

49 

Hyatt  V.  Griffiths,   222, 

311, 

335, 

740, 
744 

Jacques  r.  Witliy, 
James  ik  Cochrane, 

172 
176 

Hyde  v.  Graham, 

126 

i\  Dean, 

228, 

289,  363 

V.  Hill, 

558, 

569 

V.  Emery, 

160 

V.  Moakes,          305 

536, 

542, 

543 

V.  Jenkins, 

8 

V.  Warden, 

122, 

274, 

677 

V.  Landon, 

213 

V.  Warts, 

324, 

()65 

r.  Lichfield, 

112,  241 

V.  Wrench, 

104 

V.  Phiiit, 
Jamieson  r.  Trevelyan, 

82,  142 
517 

I. 

Jaques  v.  Millar, 

90,98 

Jay,  Ex  parte,  Ri^  Harrison, 

275 

Ibbert  c.  Do  la  Salle, 

461, 

681 

V.  Richardson, 

604,  677 

Ibbotson  V.  IVat, 

714, 

724 

Jeakes  v.  White, 

709 

Ibbs  V.  Richardson,  407 

543 

741, 

743 

Jeffer  v.  Gifford, 

707 

Icely  V.  Grew, 

390, 

393 

Jeffery  v.  Bastard, 

507 

I^gultlen  V.  May,      1()0, 

172, 

3()5, 

366 

V.  Stei)liens, 

114 

lies  V.  Assessment  Com 

mittee  of 

Jeffrey  v.  Neale, 

555 

West  Ham  Union, 

562 

Jeffreys  v.  Evans, 

180, 

677,  683, 

Imperial  Gaslight  Co. 

V.  W.  L. 

718,  726 

June.  Gas  Vo. 

583 

Jenkins  v.  Church, 

8 

Indermaur  v.  Dames, 

739 

V.  Gething, 

622 

Inderwick  7-.  Leach, 

591 

V.  Green,           18,  24,  89 

119,  178 

Inkop  V.  Morchurch, 

469 

Jenner  v.  Clegg,       356, 

378, 

413,418, 

Inman  r.  Stamp, 

87, 

128 

453 

538,  553 

Insole  V.  James, 

711 

V.  Yolland, 

449,  480 

Ipswich  (Bailiff)  v.  Martin, 

401 

Jennings  v.  Major, 

130,  195 

Ireland  i'.  Bircham, 

683 

V.  Throgmorton, 

198 

226,  533 

Irish  Society  v.  Needhani, 

378 

Jenny  v.  Brook, 

178 

Irnham  v.  Child, 

108 

Jeron  v.  Tomkinson, 

190 

Irving  V.  Asken, 

820 

825 

Jervis  v.  Tomkinson, 

144, 

151,  161, 

Isaac,  In  re. 

148 

358 

382,  669 

Isherwood  v.  Oldknow, 

35 

,61, 

201, 
389 

Jesser  v.  Gifford, 
Jevens  v.  Harridge, 

734 
291 

Israel  v.  Simmons, 

539 

546 

Jewel's  case. 

413 

Isteed  V.  Stoneley, 

163 

Jinks  V.  Edwards,        95 

,99, 

128,  133, 

Ive  V.  Sams, 

178, 

298 

300 

675,  683 

Iveson  I'.  Moore, 

699 

Job  V.  Banister, 

368 

Izon  V.  Gorton,         408 

546, 

552 

592 

John  V.  Jenkins, 
Johns  r.  Wiiitley, 
Johnson  v.  Clay, 

299 
198 

334,  469 

312,  751 

533 

J. 

V.  Faulkner, 
r.  Gallagher, 

412,  437 
118 

Jack  v.  M'Intyre, 

140 

V.  Jones, 

54 

Jackman  v.  Hoddesden, 

60 

c.  King, 

104 

lii 


TABLE   OF    CASES    CITED. 


PAGE 

Johnson  v.  Mason, 

215 

V.  Medlicott, 

46 

V.  Mills, 

803 

V.  Smart, 

62,  107 

V.  Uphaiii, 

415 

466,  500 

V.  Warwick, 

49,  287 

Johnstone  v.  Plall, 

666 

V.  Hudlestone, 

221,  303 

304,  334 

339,  353 

414,  747 

JoUand  v.  Stainbric 

Ige, 

195 

Jolly  V.  Arbuthnot, 

58 

429,  538 

Jones  r.  Barkley, 

166 

V.  Bone, 

667 

V.  Bridgman, 

302 

V.  Cannock, 

168 

V.  Carter, 

323, 

409,  420, 
643,  603 

V.  Chapman, 

741,  829 

V.  Cliappell, 

606, 735 

V.  Davies, 

285,  310 

V.  Edney, 

243,  673 

V.  Gooda}'-, 

525 

V.  Green, 

391,  604 

V.  Heavens, 

391 

V.  Hill, 

606,  610 

V.  Johnson, 

500 

502,  516 

V.  Jones, 

116,  690 

V.  Littledale, 

63 

V.  Marsh, 

353 

V.  Mills, 

340,  353, 

361,  362 

V.  Nixon, 

338,  358 

V.  Ogle, 

406 

V.  Owen, 

812 

V.  Phipps, 

342 

I'.  Reynolds, 

334, 

537,  546 

V.  Robin, 

685,  692 

V.  Shears, 

133, 

222,  543, 
669, 744 

V.  Thompson, 

396 

V.  Thome, 

667 

r.  Verney, 

8,  202 

r.  AVilliams, 

718 

Jordan  v.  Sawkins, 

93 

V.  Twells, 

532 

V.  Ward, 

9 

V.  Wykcs, 

43 

Joule  r.  Jackson, 

441 

Jourdain  v.  Wilson 

163, 254 

-Foyce,  Re, 

641 

Joynes  v.  Statham, 

112 

Jurden  i;.  Steerc, 

10,  12 

[References  are  to  the  star  paging.] 


Kearns  v.  Durell, 
Kearny  i\  Genner, 
Kearsley  v.  Oxley, 
Keates  v.  Cadogan, 
Keech  v.  Hall, 

V.  Sandford, 
Keen  v.  Priest, 


Kavanaoh  II.  Coal  Mining  Co.  of 
Ireland,  703 

V.  (Judge,  313,  742 

Kay  V.  Johnson,  97 


Keenl3'side  v.  Thornton 
Keightley  v.  Birch, 

r.  Watson, 
Kell  V.  Nokes, 
Kelly  r.  Paterson, 

V.  Webber, 

V.  Webster, 
Kemble  c.  Farrcn, 
Kemp  V.  Bird, 

V.  Cruwes, 

V.  Derrett, 


PAGB 

46 

269 

289,  291,  544 

173,  595 

51,  52,  341 

369,  370,  371 

435,  449,  452,  523 


610 
496 
160 
118 

351,  634 
363 
242 
390 
671 
450 
151,  224,  333, 

351,  352 
666 
381 

107,  120 
284 


V.  Sober, 
Kendall  v.  Baker, 

V.  Hill, 
Kennard,  Er  parte, 

Kennedy  v.  Lee,  89,  92 

Kenrick  v.  Pargiter,  690 

Kenscy  v.  Langhani,  80 

Kenworthy  v.  Schofield,  24."> 

Kenyon  v.  Hart,  721 

Keppel  V.  Bailey,  716 

Ker  r.  Roxburgh  (Duke  of),  386 
Kerby  i:  Harding,            463,  466,  478 

Kerne  v.  Benbow,  645 

Kerslake  v.  White,  136,  141 

Ketsey's  case,  38,  70 

Key  i\  Mathias,  187 

Kidgill  r.  Moor,  734 

Kidwelly  >•.  Brand,  322 

Kighly  V.  Buckley,  230 

Kimpton  r.  Eve,  613 

Kind  r.  Aniniery,  453 

King  ?•.  Ball.     "  48 

1-.  England,  417,  480 

V.  Jones,  163 

V.  IVlalcott,  293 

V.  AVilson.  116 
King's  Leasehold  Estates,  Ee,        383 

Kingdon  /•.  Nottle,  163 

Kingsbury  c. 'Collins,  750 

Kingsl;ind  r.  Barnewall,  78 

Kingsinill  r.  Millard,  742 

Kinlyside  v.  TluuMiton,  645 

Kiunersley  c  Orjie,  195,  659 

Kinsman  c.  Jackman,  669 

Kintrea  c.  I'rtston,  95,245 

Kirby  r.  Sadgrove,  ()90 

Kirkuian  v.  Jervis,  551 

Kirtland  r.  Pounsett,     •  237,  54() 

Kitching  /;.  Kitching,  799 

Knevett  i'.  I'oole,  752 


TABLE   OF   CASES   CITED. 


liii 


[References  are  to  the  star  paging.] 


PAGE 

PA8B 

Knight,  Re, 

565 

Leatt  V.  Vine, 

723 

V.  Bennett,  419,  438,  454 

,  457,  755 

Lee  V.  Cooke, 

487 

V.  Brougliton, 

405 

V.  Gaskell, 

641 

I'.  Crockforil, 

185 

V.  Lopes, 

492,  495 

V.  Egerton, 

4G4 

,  485,  526 

V.  Nixon, 

160 

V.  Mory, 

296 

V.  Kisdon,          626, 

630, 

641,  643 

and  Norton's  case, 

46 

V.  Smitli,    128,  133 

351 

378,  453 

Knipe  v.  Palmer, 

189 

I'.  Stevenson, 

713 

Knotts  V.  Curtis, 

526 

Leeds  r.  Burrows, 

762 

Knowles  r.  Blake, 

488 

V.  Cheetham,      409 

592 

600,  (!53 

Kooystra  v.  Lucas, 

82,  142 

Lees  V.  Wright, 

534,  546 

Kusel  V.  Watson, 

90,91 

Le  Feuvre  v.  Miller, 
Leftley  r.  Mills, 

577 
394 

L. 

Legal  I'.  Miller, 

113 

Legg  V.  Ben  ion, 

358,  359 

IjADd  v.  Thomas, 

415,  465 

V.  Pardoe, 

723 

Laing  v.  Header, 

417 

V.  Strudwick, 

155 

V.  Smith, 

94 

Legge  V.  Horlock, 

392 

Lainson  v.  Tremere, 

214,  216 

V.  Legge, 

618 

Lake  v.  Dean, 

418 

Legh  V.  Hewett,        175, 

603 

753,  775 

V.  Plaxton, 

696 

V.  Lillie, 

605,  762 

V.  Smith, 

746 

Lehain  v.  Philpott, 

485 

Lamb  v.  Brewster, 

565 

Lehmann  v.  M'Arthur, 

118,  657 

V.  Mills, 

460 

Leigh  V.  Belcarres  (Ear 

I), 

208 

)■.  Wall, 

453 

V.  Burrell, 

373 

Lambert  v.  M'Donnell, 

306 

V.  Dickeson, 

11,  12 

V.  Norris, 

88,  326 

V.  Heald, 

179 

Laming  i'.  Laming, 

681 

V.  Shepherd, 

423,  459 

Lancaster  v.  De  Trafford,  89,  99.  108 

V.  Thornton, 

548 

V.  Eve, 

624 

Leighton  v.  Theed, 

230 

Lane  v.  Crockett, 

444,  494 

Le  Keux  v.  Nash, 

161,  262 

Lanfranchi  v.  Mackenzie, 

705 

Lempriere  v.  Lange, 

71 

Langford  v.  Selmes, 

214, 

258,  413, 

Lentliall  v.  Thomas, 

61 

426,  532 

Le  Neve  r.  Le  Neve, 

195 

Langley  v.  Hammond, 

142 

Leslie  i\  Crommelin, 

97 

Lascelles  r.  Lord  Onslo 

V,  59 

685,  696 

V.  Pounds, 

736 

Latham  v.  Attwood, 

750 

Letchford,  Be, 

39 

Laugher  v.  Humphreys, 

376,  424 

Levi  V.  Lewis, 

536,  538 

Laurance  i'.  Faux, 

544 

Levy  V.  Goodson, 

491 

Lawder  v.  Blackford, 

109 

V.  Sale, 

160,  529 

Lawford  v.  Partridge, 

814 

Lewers  v.  Earl  Shaftesbury, 

97,  103 

Lawrence  v.  Faux, 

304 

Lewis  V.  Bond, 

117 

V.  Obee, 

706 

V.  Campbell, 

163,  683 

Lawrie  v.  Lees, 

46, 

246,  325 

V.  Fothergill, 

612 

Lawton  u.  Lawton, 

626,  636 

V.  Harris, 

438,  457 

V.  Salmon, 

622 

627,  636 

V.  Hilliard, 

144 

V.  Sutton, 

170 

V.  Price, 

706 

Lay  V.  Mottram, 

177 

V.  Read, 

523 

Laycock  v.  Pickles, 

242 

V.  Ridge, 

263 

Laylii'ld  v.  Cowper, 

616 

V.  Rochester  (Mayor), 

16 

Laytlioarp  r.  Bryant, 

92,  244 

V.  Willis, 

547 

Laytou  r.  Field, 

230 

Lewson  v.  Pigott, 

387 

Leacli  c.  Tiiomas,    175, 

597, 

611,  622, 

Leyton  v.  Hurry, 

474 

629 

Lichfield  ;;.  Ready, 

52,  197 

Leader  v.  Homewood, 

643,  649 

Liford's  case. 

179 

V.  Moxom, 

734 

Liggens  v.  Inge, 

714 

Leaf  V.  Tuton, 

241 

Lightfoot  V.  Heron, 

107 

Lear  v.  CaLdecott, 

486 

V.  Keane, 

248 

V.  Edmonds, 

634 

Lilley  v.  Harvey, 

814 

liv 


TABLE   OF   CASES   CITED. 


[References  are  to  the  star  paging.] 


Lilley  v.  Leigh, 

i'.  Whitney, 
Linder  v.  Pryor, 
Lindsay  v.  Lynch, 
Line  v.  Stephenson, 
Lineham  f.  Cotter, 
Lingliani,  In  re, 

V.  Warren, 
Linwood  v.  Squire, 
I^isburne  r.  Davies, 
Lister  v.  Brown, 

V.  Hodgson, 
Litchfield  r.  Ready, 
Littler  v.  Holland, 
Llewellyn  r.  Rous, 

V.  AVilliams, 
Lloyd,  Ex  parte, 

V.  Crisp, 


PAGE 

117 
187 
670 
101 
677 
112 
148 
487 
101 
742 
471 
217 
53,  738 
171 
405 
150 
626 
247,  657,  661 
V.  Davies,  58,  267,  271,  272, 

424,  538,  805 
V.  Dimmack,  261 

V.  Jones,  605,  814 

V.  Langford,  298,  301 

V.  Rosbee,  745,  748 

V.  Tomkies,  679,  683 

Llynvi  Coal   and   Iron   Co.,  Ex 

parte,  Re  Hill,  284 

Load  V.  Green,  198,  529 

Loader  v.  Kemp,  596 

Lobban  v.  Cook,  562,  573 

Lock  V.  Furze,    149, 182, 195, 197,  680 

Locke  v.  Matthews,  229,  231 

Lockwood  V.  Wilson,  555 

V.  Wood,  77 

Lofft  V.  Dennis,        400,  592,  595,  598 

Logan  V.  Hall,  265,  601,  656 

London  (City)  v.  Greyme,  608 

(City)  V.  Nash,  603 

(Mayor,  &c.)  r.  Hedger  612 

(Mayor,  &c.)  r.  Pewterers'  Co.  704 

(Mayor)  v.  Soutligate,  113 

V.  Soutliwell,  179 

London    and    Birmingham    Rail. 

Co.  V.  Winter,  112 

London  and  Colonial  Co.  (Hor- 

sey's  claim),  434 

London  Gas  Light  Co.  v.  Chelsea 

Vestry,  167 

London  and  North  Western  Rail. 

Co.  f.  Buckmaster,  125 

r.  Garnett,  668 

V.  West,  213 

London  and  Suburban  Co.  v.  Field, 

668 
London   &  South  Western   Rail. 

Co.  i;.  Flower,  595 

London   ami   Westminster   Loan 
and  Diacount  Co.  v.  Drake,  306, 62(5, 

043 


PAGK 

London  and  Yorkshire  Bank  v. 

Belton,  452 

London  Dock  Co.  v.  Sinnott,  103, 104 
London  Investment  Co.  v.  Monte- 

fiore,  653 

Long  V.  Bowring,  109,  117 

V.  Fletcher,  112 

Longbottom  v.  Berry,  641 

Longford  r.  Selmes,  808 

Longstaff  v.  Meagoe,  640,  646 

Lonsdale  (Karl)  v.  Rigg,  724 

Loring  v.  Warburton,  465 

Lotham  v.  Spedding,  814 

Lovcday  v.  Winter,  208 

Lovell  V.  Smith,  711 

Lovelock  i\  Dancaster,  801 

Lovering,  Ex  parte,  lie  Jones,        280 
Lovett  V.  Wilson,  686 

Lowe  V.  Carpenter,  686,  707 

I'.  Griffiths,  70 

V.  London  &  North  Western 

Rail.  Co.  545 

V.  Peers,  390 

V.  Ross,  197,  537,  738 

V.  Swift,  117 

Lowndes  v.  Fountain,  763 

Lucas  V.  Commerford,  264,  603 

V.  James,  92,  104,  107 

V.  Jones,  399 

V.  Tarleton,        437,  478,  523,  526 

Lucy  I'.  Levington,  530 

V.  Leviston,  674,  683 

Ludford  v.  Barber,  9 

Ludlow  (Mayor,  &c.)  v.  Charlton,  396 

Ludwell  r.  Newman,        675,  678,  683 

Luker  r.  Dennis,  672 

Lumley  v.  Hodgson,  267 

Lundy   (tranite    Co.,   In   re,   Ex 

parte  Heaven,  433 

Lurting  v.  Conn.  607 

Luton  Local  Board  r.  Davis,         581 
Lutterell  r.  Weston,  60 

Luxmore  v.  Robson,  588,  600 

Lybbe  !'.  Hart,  165,277 

Lyburn  v.  Warrington,  159,  184 

Lyde  V.  Russell,  029,  64:5,  646 

Lvndon  v.  Stanbridgc,  135 

Lyon  V.  Reed,  213,  299,  302,  305 

V.  Toujkies,  484,  485 

V.  Weldon,  480 

Lyons  i;.  Elliott,  440 


M. 

MArnini)!-.  r.  Weekcs,  116 

Machfll  V.  Dmiton,  ,  264 

Maclier  v.  Foundling  Hospital,  669 


TABLE   OF   CASES   CITED. 


[References  are  lo  tlie  alar  paging.] 


PAGE 

Mackay  v.  Mackreth,        i;^  220,  224, 
265,  289,  ;];58,  3(3;$ 
Mackintosh  v.  Midland   Counties 
Kail.  Co.  167 

V.  Trotter,  620,  643,  64(5 

Mackley  y.  Pattenden,  118 

Maclean  v-  Dunn,  92 

M'Ardle  v.  Irish  Iodine  Co.,    63,  190 
M'Garth  i'.  Sliannon,  297 

M'Kenzie  v.  Ilesketh,  90 

M'Leisli  ('.  Tate,  379,  419,  453 

M'Lou<!;lilan  v.  Craig,  401 

M'Murray  v.  Spicer,  89 

M'Nally  v.  Gradwell,  118 

Maddison  r.  Alderson,  100 

Maddon  i\  White,     38,  220,  332,  338, 

363 
Maddy  v.  Hale,  366 

Madeley  r.  Booth,     100,  112,  246,  265 
Magdalen  Hosi)ilal  i'.  Knotts,  20 

Magee  r.  Atkinson,  63 

Magor  V.  Cliadwick,  709.  712 

Maitland  v.  Mackinnon,  141 

Major  r.  Salisbury,  134 

i'.  Talhot,  532 

Makin  r.  Watkinson,  595 

Malet,  In  re,  217 

Mallain  v.  Arden,  395 

Malpas  ('.  Ackland,  35 

Maltby  v.  Ciiristie,  6.50 

Manchester  College  i'.  Trafford,     157 
Manchester    Bonded  Warehouse 

Co.  V.  Carr,  592 

Mann  r.  Lovejoy,  231 

Manning  i\  Greshain  Hotel  Co.,     707 

V.  Lunn,  417,  555,  556,  568 

V.  Phelps,  455,  533 

V.  Wasdale,  685 

Mansel  r.  Norton,  754 

Manser  v.  Back,  63,  92,  112 

Mansergh  v.  Rimniel,  795 

Mansfield  (Earl)  v.  Blackburn,     622, 

((27,  637 

Mantle  v.  Wollington,  11 

Mantz  r.  Goring,  589 

Markhani  r.  Stanford,  81,  545 

Marlborough  v.  Osborn,  375,  384 

Marsh  i:  Curteys,  313,  325 

Marshall  v.  Berridge,  90 

i\  Lynn,  93 

Marston  v.  Dean,  549 

Martin  r.  Gilhara,  175 

V.  Goble,  733 

V.  Ileadon,  705 

v.  Knowllvs,  611 

V.  Py croft,  91,  94,  112 

V.  Roe,  621,  644 

V.  Smith,  221,  597 

V.  Watts,  8,  9 


PAOE 

Martindale  r.  Booth,  270 

Martyn  v.  Clue,  163,  168,  594 

i:  Williams,  252,  254,  363 

Martyr  v.  Bradley,  631,  639,  945 

V.  Lawrence,  140 

Marwood  v.  Waters,  536,  813 

Mary's  case,  690 

Mason  v.  Bibby,  353 

('.  Corder,  247,  657 

V.  Farnell,  287 

r.  Hill,  708,  712,  714 

Massey  i;.  Goodall,  605,  762 

Master  v.  Hansard,  7U6 

Masters  r.  Farris,  522 

c.  Poliie,  617 

Mather  r.  Fraser,  625,  641 

Matheson  c.  Ross,  399 

Mathews  r.  Whetton,  60 

Matthews  ?•.  Ba.xter,  46 

r.  Goodday,  263 

Matthewson  ?'.  Wrightman,  350 

Matthias  i'.  Mesnard,  441 

Mattock  r.  Kinglake,  167 

Matts  V.  Hawkins,  614 

Maughan,  In  re,  279 

Maund's  case,  394,  428 
Maundrell,  E.r  parte,  Re  Drake,     276 

V.  IMaundrell,  34 

Maunsell  v.  O'Brien,  371 

Maw  r.  Hindmarsh,  670 

Maxwell  r.  Port,  107 

May  r.  Footner,  733 

Mayfield  v.  Robinson,  79 

Mayhew  r.  Suttle,  31,  236,  797 

V.  Wardle^',  723 

Mayor  v.  Burgess,  513 

Mechelen  r.  Wallace,  419,  552 

Meek  t'.  Carter,  328 

Meggison  r.  Glamis  (Lady),  418 

Meiling  r.  Leake,  228,  229 

Mellor  r.  Leatlier,  499,  500 

V.  Watkins,  266,306 

Mellows  V.  May,  300 

Mennie  r.  Blake,  499 

Mercer  r.  Irving,  390 

&  Moore.  Re,  274 

^lerceroii  r.  Dowson,  264 

Merchant  Ta'ylors'  Co.  v.  Truscott  704 

Meres  r.  Ansell,  135 

Merrill  r.  Frame,  677 

Merry,  /)(  re,  34 
Messenger  v.  Armstrong,  339, 356,  746 

Messent  r.  Reynolds,  675 

Metcalfe  ;•.  Scholey,  270 
Metropolitan  .Association  v.  Petch,  733 

Metropolitan  Counties  Assurance 

Co.  /•.  Brown,  233 

Mctroi)()litaii  Rail.  Co.  r.  Defries,  238 

Meynell  v.  Surtees,  103 


Ivi 


TABLE   OF   CASES    CITED. 


[References  are  to  the  star  paging.] 


Micklethwaite  v.  Winter,  179 
Middleiiiore  r.  Goodale,  108 
Middleton  v.  Bryan,  602 
V.  Gale,  723 
1-.  Greenwood,  113 
V.  Magnay,  97,  113 
Miles  V.  Furber,  440 
Mill  i:  Mill.  369,  371 
V.  New  Forest  Commissioners,  687 
Miller  v.  Finlay,  100 
t'.  Green,  437 
?•.  Mavnwaring,  10,  151 
V.  Pafnell,  270 
Millership  v.  Brooks,  103,  190,  537 
Milliner  i-.  Kobinson,  12 
Mills  V.  East  London  Union  Guar- 
dians, 595,  600 
V.  Goff,  348,  352 
V.  Ladbrook,  160 
V.  Trumper,  405 
V.  Tweed,  246 
Milner  v.  Milnes,  285 
!,•.  Myers,  742 
Milnes  V.  Grey,  113 
Milward  v.  Thanet  (Earl),  115 
Miner  v.  Gilniore,  708 
Minshall  r.  Lloyd,  624,  643,  728 
Minton  v.  Geiger,  135 
Mitcalfe  v.  Westaway,  177 
Mitchell  V.  Lee,  396 
V.  Steward,  677,  678 
Mitchison  v.  Tiiompson,  330 
Modlen  v.  Snowball,  102,  114 
Moir  (•.  Munilnj-,  523 
Mnlineux  r.  Molineux,  321 
Mollett  r.  Braync,  302,  334 
Molton,  In  re,  389 
r.  Camroux,  45 
Moiievpenny  v.  Hartland,  650 
Monk  !•.  Cooper,  408 
V.  Noyes,  590 
Monroe  ;•.  Kerry,  216 
Montague's  (Lady)  case,  60,  61 
Moodv   ('.  Uean   and    Chap,  of 

Wells,  569 

Moon  V.  Webb,  ()86 

Moore  i'.  Campbell,  93,213 

V.  Clarke,  695,  616 

V.  Clench,  21 

V.  Culverhouse,  193 

•  V.  Drinkwater,  438,  523 

V.  Greg,  21)4 

V.  Musgrove,  152 

v.  Pi V mouth  (Earl),  317,718 

V.  I'yrke,  480 

V.  Hawson,  706 

V.  Robinson,  671 

V.  Webb,  708,  712 

Moores  r.  Choat,  264,  660 


PAGE 

Morden  v.  Porter,  721,  723 

Morecock  v.  Dickins,  195 

Morewood  v.  Wilks,  47 

Morgan  v.  Abergavenny,  430 

V.  Davies,  347,  348 

V.  GrifBth,  87,  500 

V.  Griffiths,  726 

V.  Hunt,  681 

V.  Parrv,  422 

V.  Rhodes,  118,  119 

V.  Slaughter,  656 

V.  Thomas,  287,  288 

Morgell  V.  Paul,  540 

Moriand  v.  Cook,  163 

Morley  v.  Attenborough,  647 

r.  Pinconibe,  434 

Morphett  r.  Jones,  93,  100 

Morris  i:  Edgington,  82,  682,  703 

?•.  Eline,  58 

1-.  IMatthews,  520 

V.  Twist,  60 

Morrison  i;.  Ciiadwick,  301,  401, 

409,  532 

Mortal  V.  Lyons,  62,  98,  102 

Mortimer  v.  Shortall,  217 

Morton  v.  Palmer,       •  446 

V.  AVoods,  52,  58,  214,  234, 

378,  425 

Moselej'  v.  Virgin,  603 

Moser,  In  re,  280 

Moss  V.  Barton,  369 

V.  Gallimore,         13,  51,  255,  267, 

424,  538 

Mostyn  r.  West  Mostyn,  &c.,  (-o.,  97, 

217 
Moule  V.  Garnett,  261 

Mounsey  r.  Dawson,  501 

r.  Ismay,  686,  (i89 

Monntjoy's  case,  381,  389 

Mountiiey  r.  Collier,  548,  814 

Mousley  r.  T>udlnm,  761 

Moxev  V.  Bigwood,  106 

Movie  r.  Movie.  607 

Mucclestone  r.  Thomas,  168 

Muiraney  v.  Dillon,  369 

Mumford    r.   Oxford,  Worcester 

and  Wolverliampton  Kail.  Co.,  733 
Muncev  v.  Dennis,  138,  761 

Muncv""*-.  Joliffe,  100 

Mungean  v.  Wliratley,  610,  518 

M unlock  r.  Taylor,  54 

IVlurgatroyil  r.  Kobinson,  708 

Murlcv  r."M'Dermott  614 

Murphy  v.  Da',.,,  608 

Murray  v.  Barbc,  118 

V.  King,  398 

('.  Parker,  217 

Murray  r.  Stair  (Earl),  190 

Murreil  v.  Tysh,  260 


TABLE   OF   CASES   CITED. 


ivu 


[References  are  to  the  star  paging.] 


Musgrave  v.  Cave, 

V.  EnuTson, 
Miiskett  V.  Hill, 
Muspratt  v.  Gregory,. 


N. 


79,  698 

377,  413 

345 

441 


Nagle  v.  Baylor, 

46 

Nargett  v.  Nias, 

451 

Nash  V.  Gray, 

395 

V.  Lucas, 

462,  525 

V.  Palmer, 

679,  683 

V.  Turner, 

215 

Nation  v.  Tozer, 

289,  545 

National  Savings  Ban 

k  Associa- 

tion,  Re,  Ex  parte  Brady, 

101 

Naylor  v.  CoUinge, 

591,  637 

Neale  v.  Mackenzie, 

118, 

197,  401, 

410 

418,  525 

I'.  Ratcliffe, 

167,  594 

t\  Swind, 

545 

V.  Wyllie, 

265,  599 

Neate  v.  Harding, 

212 

Neave  v.  Moss, 

9,214 

Nelson  v.  Liverpool  Brewery  Co.,  735 

Neplan  v.  Doe, 

•   148 

Nesbit  V.  Meyer, 

98,  116 

Ncsbitt  V.  Tredennick, 

370 

Neshatn  v.  Selby, 

90,  93 

Ness  r.  Stevenson, 

446 

Neve  i\  Pennell, 

192,  193 

Newbury,  In  re, 

691,  742 

Newby  v.  Jackson, 

805 

V.  Sharpe, 

682 

Newcombe  v.  Harvey, 

252 

Newling  v.  Pearce, 

429 

Newman,  In  re, 

196 

V.  Anderton,         84,  225, 

402,  413 

Newport  V.  Hardy, 

540, 

544,  547 

New  River  Co.  ?'.  Johnson, 

714 

Newson  v.  Smythies, 

107, 

169,  604, 
740 

Newton  v.  Allin, 

401,  409 

V.  Beck, 

248 

i;.  Harland, 

741 

V.  Nock, 

669 

V.  Scott, 

443 

V.  Wilmot, 

176, 

179,  720 

Niblet  [•.  Smith, 

439,  500 

Nicholas  r.  Simonds, 

751 

Nickells  v.  Atherstone,    299,  301,  302, 

304,  305 

NicoU  V.  Jenning,  666 

Nixon,  Ex  parte,  605 

V.  Albion  Marine  Insurance 

Co.,  186 

V.  Freeman,  452,  461,  523 

V.  Quinn,  645 


93 
163 


114 


Noble  i\  Cass, 
iJ.  Smith, 
V.  Ward, 
Noke  V.  Awder, 
Noke's  case, 

Norbury  (l.,ord)  v.  Kitchin, 
Norris  *'.  Carrington, 

V.  Jackson, 
Northam  v.  Hurley, 
Northcote  v.  Underhill, 
North  London  Land  Co.  i-.  Jaques, 
Northumberland    (Earl)    v.    Er- 

rington,  160 

North-Western    Railway   Co.   v. 

M'Michael, 
Northwick  v.  Stanway,  69, 

North  Yorkshire  Iron  Co.,  In  re, 
Norton  r.  Harvey, 

V.  Herron, 
Norval  v.  Pascoe, 
Nott  V.  Bound, 
Nunn  V.  Fabian, 
V.  Truscott, 
Nurse  v.  Seymour  (Lord), 
Nuttall  r.  Bracewell, 


V.  Staunton, 


100, 

112, 
710, 
420,  454, 


PAGE 

289 

681 

,243 

,  532 

172 

708 

513 

.  115 

71U 

162 

330 

530 

70 
696 
433 
49 
63 
253 
482 
101 
117 
119 
716 
457 


O. 


Oakapple  v.  Copous, 

Oakley  y.  Monck,        9,221,222, 

Oak  Pits  Colliery  Co.,  In  re, 

Oastler  v.  Henderson, 

Oates  V.  Frith, 

Oceanic,  &c.,  Co.  v.  Sutherbury, 

O'Connor  v.  Spaight, 

Odell  V.  Wake, 

Ogden  V.  Fossick, 

(^gilvie  V.  Foljambe, 

Ognell's  case, 

O'Hare  v.  Fahy, 

O'Herlihy  v.  Hedges, 

Oland  V.  Burdwick, 

Oland's  case, 

Oldershaw  v.  Holt, 

Oldfield's  case, 

Olroj'd  V.  Crampton, 

Onions  v.  Cohen, 

Onley  n.  Gardner, 

Onslow  V. , 

V.  Corrie, 
Openshaw  v.  Evans, 
Opperman  v.  Smith, 
Orby  v.  IMohun, 
Orgill  V.  Kemshead, 
Ormes  v.  Beadel, 
Ormond  (Lady)  v.  Hutchinson, 
Ormrod  i'.  Huth, 


161,  248, 


106, 


no. 

688, 

612, 

161,  262, 


200,  379, 
101, 


349 
223 
434 

303 
385 

48 

93 
258 
114 

89 
428 
094 
118 
230 
761 
405 
702 

81 
678 
700 
761 
276 
590 
469 
386 
401 
113 

78 
647 


Iviii 


TABLE   OP   CASES    CITED. 


[References  are  to  the  star  paging.] 


Osbond  V.  Meadows, 
Osborn  V.  Garden, 
Osborne  v.  Wickenden, 


82, 


437, 


c.  Wise, 
Outrani  v.  Maude, 
Owen  V.  l)e  Beauvoir, 

r.  Leigh, 

V.  Owen, 

i\  Tearce, 

V.  Thomas, 

V.  Williams, 
Owens  V.  Wynne, 
Oxenham  v.  Collins, 
Oxford  V.  Provand, 

(Bishop  of)  V.  Wise, 
Oxiey  V.  James,  13,  253, 


PAGE 

721 

40 

428 

136,  703 
608 
4o5 

464,  479 
805 
814 
89 
371 
486 
412 
91,  102 
558 

254,  259 


Packer  v.  Gibbins,  408,  551 

Paddington  Gharities,  In  re,  540 

Paddock  v.  Fradley,  136 

Padwick  v.  King,  717,  721 

Page,  In  re,  280 

V.  Broom,  117 

V.  More,  156,  335,  340, 

348,  747 

Paget  V.  Foley,  345,  533 

V.  Marquis  of  Anglesea,  405 

V.  Marshall,  217 

Paget's  (Lord)  case,  152 

Pain  V.  Coombs,  100,  101,  117 

Paine  v.  Kyder,  698 

Painter  v.  Hill,  187 

V.  Newby,  111 

Palgrave  v.  Windham,  492 

Palk  V.  Force,  650 

V.  Shinner,  687,  734 

Palmer  v.  Earith,  556,  571 

V.  Edwards,  258 

V.  Elkins,  548 

V.  Gosen,  655 

Palmer's  case,  153,  616 

Pannell  v.  Fenn,  49 

V.  Mill,  177,  179,  719 

Panton  v.  Jones,  549 

Pajii'iidick  V.  Bridgwater,  686 

Papillon  V.  Brunton,  345,  348, 

353,  354,  550 

Paradine  r.  Jane,  410 

Paramour  r.  Yardlcy,  49 

Parptcr  v.  Harris,  214,  215,  253 

Parish  r.  Sh'cman,  119,  555,  568 

Parke,  /•.'<  i>(tit<\  Potter,  In  re,        435 

V.  M'Loiighlin,  215 

Parker,  In  ri','V\xT^}iiiv\A,Ex parte,  281 

V.  Ciibbins,  592 

V.  Harris,  159,  230,  379 


Parker  v.  Manning, 
V.  Mitchell, 
V.  Plumber, 
V.  Shepherd, 
V.  Taswell, 

V.  Webb, 
V.  Whyte, 
r.  Winlow, 
Parkes  r.  Constable, 


PAGE 

532,  548 

()86 

140 

156 

91,  98,  114, 

128,  132 

163 

265,  677 

63,  64 

219,  335,  347, 

363 

Parkinson's  case,  15,  30 

Parmenter  v.  Webber,    258,  421,  426, 

429 
Parrott  v.  Anderson,  398 

Parry  v.  Deere,  185 

V.  Duncan,  469,  518 

V.  Hindle,  43,  428 

Parsons  v.  Gingell,  440 

V.  Hind,  622 

Partington  v.  Woodcock,    52,  267,  425 
Partridge  v.  Bere,  733 

V.  Foster,  270 

V.  Navlor,  476 

Pascoe  V.  Pascoe,      258,  264,  421,  426 
Pasley  v.  Freeman,        _  64 

Paterson,  Ex  parte,  Throckmor- 
ton, In  re,  280 
Patman  v.  Harland,  665 
Patrick  r.  Stubbs,             685,  690,  696 
Patten  v.  Keid,                           290,  545 
Pattison  v.  Gittard,  719 
Paul  I'.  Meek,  129 
V.  Nurse,  164 
V.  Summerhayes,                        724 
PauU  i:  Simpson,                               289 
Paxton  V.  Newton,                     111,  603 
Payler  r.  Homersham,  134 
Payne  i\  Burridge,          555,  556,  558, 
562,  570 
r.  Haine,                                       589 
i\  Kogers,                            736,  739 
V.  Shedden,                                  711 
Paynter  ?'.  The  Queen,                    672 
Peacock  v.  Peacock,                227,  444 
r.  Penson,                              98,111 
V.  I'urvis,                                      443 
Pearce  r.  Brooks,                               533 
V.  Cheslyn,  187 
Pearse  r.  Houlter,                      344,  345 
r.  Morrice,  81 
Pearson  v.  Glazebrook,            714,  813 
r.  Spencer,                          142,  703 
Pease  r.  Chaytor,              607,  614,  625 
r.  Coats,                                       067 
Peers  r.  Sn<'vd,  62 
Pegier  r.  w'hite,                         lOfi,  108 
Pelhitt  V.  Boosey,                      322,  325 
IVlls  V,  Iloarc,                                  625 


TABLE   OF   CASES   CITED. 


lix 


[Keferencee  are  to  the  Bfar  paging.] 


Pemberton  v.  Chapman,  288 
Pembroke  (Earl   of)    v.  Sir   H. 

Berkeley,  29B 

Penfold  V.  Abbott,     .  17;] 

Penley  v.  Watts,  205,  GOl 

Pennant's  case,  •524,  4-j-j 
Penniall  v.  Harborne,     240,  324,  (i52, 

655 

Pennington  v.  Cardale,  20, 197,341,345 

V.  Morse,  231 

V.  Taniere,  9 

Penry  v.  Brown,  591,  622,  637 

Ponton  V.  liobart,     617,  621,  62(),  629 

Penwarden  v.  Ching,  680,  705 

Pcrcliard  i'.  Heywood,  576 

Perliam,  Re,  839 

Perkins,  /;«  re,  433 

V.  Bradley,  47 

Perreau  v.  Beavan,  500 

Perring  v.  Brook,  134 

Perry  v.  Davis,  312 

V.  Edwards,  679 

V.  Fitzhowe,  690,  697 

V.  Shipway,  228 

Pester  v.  Cater,  61 

Peter  v.  Kendall,  83,  304 

Petrie  v.  Daniel,  701 

V.  Dawson,  628,  641 

Phelps  v.  Prothero,  98,  246 

Phen6  v.  Popplewell,  302 

Pheyscy  v.  Vicary,  142,  703,  714,  717 

Phillips  V.  Beer,  502 

V.  Berryman,  525 

V.  Bridge,  319 

V.  Edwards,  102,  110 

V.  Everard,  117 

V.  Henson,  440 

V.  Hudson,  691 

V.  Phillips,  370 

V.  Pearce,  32,  538,  548 

V.  KoUings,  4 

V.  Shervill,  443 

V.  Smith,  606,  017,  620 

V.  Whitsed,  478 

Philpott  V.  Hoare,  262 

V.  Lehain,  485 

Phipps  r.  Seulthorpe,  305,  544,  548 

Picard  V.  Hine,  118 

Pickering  v.  Noyes,  719 

Piggott  V.  Birtles,     436,  464,  486,  52(5 

17.  Stratton,  306 

Pigot  i\  Garnish,  40,  41 

Pigot's  case,  198 

Pike  V.  Eyre,  13,  224 

Pilcher  v.  Hinds,  799 

Pilkington  r.  Hastings,  410 

Pillins  V.  Armitage,  91 

Pilton,  Ex  parte,  830 

Pirn  V.  Currell,  140 


PAOB 

Pinconib  v.  Thomas,  179 

Pindar  r.  Ainsley,  598 

V.  Wadsworth,  689 

Piuero  v.  Judson,     133,  134,  419,  541, 

542 
Plnhorn  r.  Souster,  228,  229,  232,  259 
Pinner  i\  Arnold,  641 

Pinnington  v.  Galland,  142 

Pistor  V.  Cater,  128,  1()9 

Pitcairn  v.  Ogbourne,  41 

Pitcher  v.  Tovey,  262,  289,  290 

Pitman  v.  Woodbury,  99, 161,  189,  537 
Pitt  V.  Laming,  660 

V.  Shew,  434,  438,  479 

V.  Smith,  •  46 

V.  Snowdon,  429 

Pittiward,  lie,  570 

Place  v.  Fagg,  438,  642 

r.  Jackson,  685,  697 

Plant  V.  James,  142 

Plasterers'  Co.  v.  Parish  Clerks' 

Co., 
Piatt  (Lady)  i'.  Slcap, 
Playfair  v.  Musgrove, 
Pleasant  v.  Benson, 
Plumer  v.  Brisco, 
Plumnier,  Ex  parte, 

V.  Whiteley, 
Pocock  r.  Eustace, 

V.  Gelliam, 
Podger's  case, 
Polden  r.  Bastard, 
Pole  V.  Davis, 
Pollard  V.  Grenvil, 
Pollen  r.  Brewer, 
PoUitt  V.  Forrest, 


Pollock 


704 

309 
58,  270 
306,  344,  353 
503 
282 
405 
562 
665 
61 
142, 703,  713 
55 
204,  205 
229,  741 
379,391,413,418, 
484,  488 
Stacev,    258,  264,  539,  542 


Pollyblank  ;•.  Hawkins,  532 

Pomery  v.  Partington,  80,  208 

Pomfret  v.  Kicroft,  598,  682,  702 

Ponsford  v.  Walton,  190 

Ponsonby  v.  Adams,  6ti3 

Poole  V.  Adams,  653 

V.  Archer,  592 

I'.  Bentley,  132,  134 

V.  Hill,  160 

t'.  Longueville,  450 

(Mayor,  &c.,  of)  v.  Whitt,      270. 

271,  409 


V.  Tunbridge, 
V.  Warren, 
Poole's  case, 
Pooiey  r.  Driver, 
Pope  V.  Biggs, 
Pordage  v.  Cole, 
Porris  v.  Allen, 
Porter  v.  Slu'iihard, 
V.  Sweetnani, 


532 

348,  353,  746 

438,  627,  643 

727 

51,  54,  424 

167 

300 

170,  358 

160 


Ix 


TABLE   OF   CASES   CITED. 


[References  are  to  the  star  paging.] 


511, 


PAGE      I 

Portmau  v.  Home  Hospitals  As-  Pyle  v.  Partridge, 

sociation,  667       Pym  v.  Campbell, 

r.  Mill, 
Postlewaite  v.  Lewthwaite, 
Postman  r.  Harrell, 
Potten  f.  Bradley, 
Potter  V.  Diiffield, 

V.  North, 
Poulteney  v.  Holmes, 
Pow  V.  Davis, 
Powell  V.  Chester, 

V.  Hibbert, 

('.  Llovd, 

r.  Lovegrove, 
Powis  r.  Lord  Dynevor, 

V.  Smith, 
Powley  V.  Walker,    175,  603,  604,  775 
Pownall  V.  Moores,  605 

Powseley  v.  Blackman,  53 

Powjs  V.  Blagrave,  613 

Poynter  v.  Buckley,  481 

Povntz  V.  Fortune,  117 

Pratt  1-.  Brett,  613 

V.  Keitli,  414 

Preece  v.  Corrie,       258,  264,  421,  426 
Prentice  v.  Elliott,  544 

Prescott  V.  Phillips,  710 

Press  IK  Tarker,  141 

Preston  v.  Love,  9 

V.  Peeke, 
Pretty  v.  Bickmore, 
Price  V.  Assheton, 


667 
139 
364 
469 
511 

89 
685 
264 

63 
174 
640,  548 
118 
91,  93,  100 
116 
423 


V.  Birch, 

V.  Dyer, 

i;.  Griffiths, 

V.  Ley, 

V.  Salusbury, 

V.  Varney, 

V.  Williams, 

r.  Worwood, 
Prichard  v.  Powell, 
Pritchard  v.  Stevens, 
Proctor  V.  Harris, 

In  re, 
Progress  Assurance  Co.,  Re 


549 

736,  739 

102,  118 

61 

93,  113,  155 

89,91 

211 

93,  100 

58,  272 

24,  676 

320,  323 

692 

501 

739 

34 

433 


I'ropert  r.  Parker, 
Prosser  v.  Piiillips, 

V.  Wagner, 
Proud  r.  Bates, 


92,  120,  121,  664 

187 
221 
177 


Proudlove  v.  Twemlow,  437,  464,  479 

Pugh  V.  Arton,  276,  643 

V.  Grimth,  463 

*;.  Leeds  TDuke  of),  150,  204 

V.  Stringfi.-ld,  160,  5:!0 

I'ulbrook  r.  I>a\ves,  95,  242 

Pidlcii  v.  I'alincr,  422 

J'uiiiictt.  h'.i  jKiile,  Kitchin,  Tn  re,  234 

Pye  ('.  Murnford,  ()H4,  717 

Pyer  v.  Carter,  142,  713 


PAGB 

459 
103,  190 


Q- 


QuARRiNGTON  V.  Arthur,  670 

Queen's  Benefit  Building  Society, 

Ex  parte,  Threlfall,  In  re,  233 

Queen's  College  v.  Hallett,  608 

Quilter  v.  Mapleson,  330 

Quincey,  Ex  parte,  630,  643 


R. 


Rabbett  v.  Raikes,  617 

Race  V.  Ward,  685 

Raine  v.  Alderson,  732 

Rakestraw  v.  Brewer,  370 

Ranibert  v.  Cohen,  399 
Ramsbottom  v.  Buckhurst,       58,  272 

V.  Mortley,  186 

V.  Tunbridge,  186 

Ramsden  v.  Dyson,  377 

Rand  v.  Vaughan,  468 

Randall  v.  Stevens,  732 

Randle  v.  Long,  148 

V.  Lory,  319 

Rands  v.  Clark,  746 

Ranelagh  (Lord)  v.  Melton,  373 
Rangeley  v.  Midland  Rail.  Co.,       G92 

Rankin  v.  Lay,  117 

Rawlings  v.  Morgan,  255,  591 

Rawlins  v.  Briggs,  580 

Rawson  v.  Eicke,  132,  343,  538 

Rawston  v.  Bentley,  368 

Rawstron  i-.  Taylor,  707,  709,  713, 

715 

Raymond  v.  Fitch,  289 

Read  r.  Brookman,  129 

and  Nash's  case,  389 

Read's  case,  442 

Reade  v.  Johnson,  535 

V.  Lamb,  94 

Red.lell  r.  Stowey,  488 

Rede  V.  Farr,  198,  313,  317 

Rrdpath  r.  Roberts,  407,  551 

Reed  r.  Deere,  184,  185 

V.  Harvey,  278.  280 

J-.  Thoyts,  491,494 
Reedie    v.    London    and    Nortli- 

Western  Rail.  Co.,  737 

Rees  V.  Da  vies,  831 

V.  F.rvington,  311 

■  r.  Kin-,  317,  320,  360 

V.  IVrrott,  344,  806 

Reeve  v.  Bird,  303 

Reeves  v.  Cattell,  666,  672 


TABLE   OF   CASES   CITED. 


Ixi 


[References  are  to  the  star  paging.] 


PAGE 

Reeves  v.  Gell,  'J9 

V.  Greenwich    Tanning   Co., 

108,  119 
V.  Watts,  521) 

KccrGnt  United  Service  Stores  As- 
sociation, In  re,  434 
Tli'gina  (see  Kex). 

Kegnart  v.  Porter,  417,  419 

Heid  V.  Parsons,  198 

V.  Tenderden  (Lord),  291 

TJeignolds  v.  Edwards,  699,  701 

Reindel  v.  Scliell,  ;390 

Remnant  r.  Bremridge,  544 

Hen  V.  Bulkeloy,  202 

Kennie  v.  Robinson,  214,  548 

Renshaw  v.  Bean,  705 

Reuss  V.  Picksley,  103,  104 

Revell  V.  Hussey,  109 

Revett  V.  Brown,  228 

Rex     {or     Regina)    v.   Aberyst- 

with,  573 

V.  Adamson,  527 

17.  Aldoboroiigh,  159 

t;.  Alresiord,  79,  140 

V.  Aylesbury-with- Walton, 

556,  576 
V.  Aylesford,  576 

V.  Baker,  843 

1-.  Bangor  (Bp.),  843 

V.  Bardwell,  236 

V.  Barrett,  736 

V.  Battle  Union  (Guardians),  720 
V.  Bell,  571 

V.  Bissex,  472 

V.  Bolton,  833 

V.  Bowser,  844 

V.  Broke,  700 

V.  Burchet,  501 

V.  Cambridge  (Vice.-C),  15,  30 
V.  Chawton,  154,  155,  220,  337 
('.  Cheshire  (JJ.),  472 

V.  Ciiesluint,  230 

V.  Chipping  Norton,  15 

V.  Chorley,  706 

I'.  Clarke,  475 

V.  CoUett,  227 

V.  Cory,  439 

V.  Cottle,  707 

V.  Cotton,  415,  442,  444,  840 

I'.  Covent  Garden  (Trustees 

of),  189 

f.  Cridland,  721 

V.  Davis,  472 

V.  Decaux,  444 

V.  Dunn,  581 

V.  Fillongley,  227 

V.  Flanagan,  458 

r.  Gardiner,  572 

I'.  Great  Glen,  289 


PAGE 

Rex  V.  Great  Wakering,  160 
V.  Great  Western  Rail.  Co.,  570 
i;.  (jiirdon,  502 
V.  Hale,  60 
V.  Hammersmith,  577 
V.  Hariand,  844 
V.  Head,  570 
V.  Hedges,  629 
V.  Herstmonceaux,  220,  225,  333 
V.  Hill,  444 
V.  Hornchurch,  59 
'v.  Ingham,  840 
V.  Johling,  227 
V.  Jones,  845 
I'.  Kirby,  572 
V.  Licensed  Victuallers'  So- 
ciety, 570 
V.  Londonthorpe,  630 
V.  Longlar  Gas  Co.,  583 
V.  Longnor,  189 
V.  Lubbenham,  213 
V.  Lynn,  572 
V.  Metropolitan    Board  of 

Works,  714 

V.  Middlesex  (JJ.),  833 
V.  Middlesex  (Registrar),        191, 
192,  194 

r.  Mitcham,  5()8 

V.  Monkhouse,  501 

V.  Morgan,  472 

V.  Morrish,  124,  131 

V.  Mortlock,  353 

V.  Nevill,  135 

V.  Nicholson,  83 

V.  North  DufReld,  15 

V.  Oakley,  40,  845 

I'.  Oliver,  501 

r.  Otlev,  621 

V.  Pedfey,  736 

V.  Pratt.  723 

V.  Preston,  188 

V.  Rabbits,  472 

V.  Radnor  (JJ.),  471,  472 

V.  Raines,  507 

t'.  Ramsden,  Bart.,  581 
V.  Richinond  (Recorder),         354 

V.  St.  Dnnstan's,  630 

V.  St.  Martin's,  572 

V.  St.  Mary-the-Less,  572 

V.  Salisbury  (Marquis),  572 

V.  Scott,     '  559 

V.  Sewell,  836,  840 

V.  Sheil,  565 

V.  Sherrington,          .  40 

V.  Shickle,  439 

V.  Sliipdam,  236 

I'.  Shropshire  (JJ.),  473 

V.  Skingle,  571 

V.  Smyth,  846 


Ixii 


TABLE   OF   CASES   CITED. 


[References  are  to  the  star  paging.] 


Rex  V.  Snape, 

I'.  Sotherby, 

V.  Spurrt'U, 

i>.  Stannard, 

V.  Sterry, 

I'.  Stock, 

V.  Stowe, 

V.  Sudbury, 

V.  Sutton, 

V.  Thorp, 

V.  Tliurlstone, 

V.  Topping,  315 

V.  Traill, 

V.  Tyncmouth, 

V.  Wait, 

V.  Watts, 

V.  Welby, 

V.  Wells, 

V.  Westbrook, 

V.  Weston, 

V.  Williams, 

V.  Wilson, 

V.  Wood, 

V.  Yorkshire  (JJ.), 
Reynal,  Ex  parte, 
Reynard  v.  Arnold, 
Reynolds  v.  Bariord, 

V.  Bridfie, 

V.  Waring, 

V.  Wright, 
Rhj'mney  Rail.  Co.  v.  Price, 
Rich  V.  Basterfield, 

V.  Jackson, 

V.  Woolley, 
Richards  v.  Bluck, 

V.  Cccley, 

V.  Frye, 

r.  Richards, 

V.  Soly, 
Richardson  v.  Capes, 

V.  Evans, 

V.  fiilTord,  128,  133,  221 

V.  Hall, 

r.  Jackson, 

V.  Langridge,  154, 

V.  Walker, 
Riekett,  lie, 
Ricketts  v.  Bell, 

V.  Salway, 

V.  Weaver, 
Ri(!knian  v.  Johns, 
Riddell  c.  Stowc}', 
Ridgway  v.  StatYord  (Lord), 

I'.  Wharton,     (52,  !»2, 
Riglit  r.  Beard, 

V.  Cuthell, 

V.  Darby,    231, 


11.  Proctor, 


15(5, 
3:)5, 
347, 


PAGE 

236 
444 
236 
736 
572 
236 
363 
572 
40 
40 
718 
639,  661 
839 
572 
63,  92 
738 
59 
572 
375 
387 
720 
258,  844 
723 
353 
642 
373,  374 
493 
392 
102 
288 
501 
736 
112 
469 
171 
61 
687 
287 
132,  154 
716 
(>:>6 
351 
5:57 
417 
225,  227 
716 
209 
91,  117 
691,  711 
289 
433 
417 
444,481 
104,  105 
237,  339 
346,  359 
;J3().  338, 
353,  729 
131 


PAGB 

Right  V.  Thomas,      132,  199,  207,  389 

Riseley  v.  Ryle,  491,  492,  495 

Rivis  V.  Watson,      146,  266,  267,  423 

Roach  V.  Garvan,  40 

Roberts  r.  Barker,  753,  762 

V.  Berry,  99 

V.  Brett,  166,  181,  588 

V.  Collins,  112 

V.  Davey,  197,  198,  316,  3'.9 

V.  Hayward,         62,  339,  346,  744 

V.  Rose,  126,  714 

r.  Showier,  248 

V.  Tregaskis,  91,  241 

Robertson  v,  Norris,  285 

Robins  v.  Cox,  252 

Robinson  v.  Anderton,  647 

V.  Harman,  95 

r.  Hoffman,  422,  459 

V.  Learoyd,  745,  748 

V.  Lenaghan,  812,  815 

V.  Milne,  180 

i\  Page,  94,113 

V.  Tongue,  80 

r.  Waddineton,  478,  523 

Robson  r.  Flight,        34,  203,  210,  678 

Rochdale  Canal  Co.  r.  Radcliffe,  656 

Rochester  (Dean  and  Chap.)  v. 

Pierce,  540 

Rockingham  (Lord)  v.  Penrice,     394 


Roden  v.  Eyton, 
Rodgers  v.  Parker, 

Rodmell  v.  Eden, 

Roe  V.  Davis, 
V.  Doe, 
V.  Galliers, 
V.  Harrison, 
V.  Ilayley, 
V.  Hodgson, 
V.  Lees, 
V.  Moore, 
I'.  Paine, 
r.  Pierce, 
V.  Prideaux, 
V.  liamsbottom, 
?;.  Sales, 
V.  Street, 
V.  Summerset, 
j7.  Walker, 
V.  Ward,         9 
?;.  Whiggs, 
V.  Wilkinson, 


464,  480 

437,  447,  464, 

479,  526 

63 

129,  321 

347 

166,  274,  661 

324,  656,  662 

156,  163,  318,  359 

40 

154,  338 

791 

169,  325,  593,  602 

341,  345 

9,  201,  230 

10 

660 

229,  344,  353, 354 

49,  288 

141 

223,  230,  351,  744 

344,  798 

347 

V.  York  (Archbishop),    199,  297, 
300.  301,387 


Roffey  r.  Henderson, 

Rogers,  AV,  Trusts, 
1'.  Birkmire, 
f.  Grazebrook, 


126,626.  645, 
714 
405 
457 
235 


TABLE   OF   CASES   CITED. 


[References  arc  to  the  star  paging.] 


PAGE 

Rogers  i'.  Humphreys, 

?, 

i,  35 

,  50, 

51,  52,  5?, 

,  55, 

2()7, 

425 

V.  Kinfiston-upon-Il 

ill  Doi-k 

Co.,          3;j;j, 

:]:J4 

348, 

353 

V.  ritclier, 

268 

272 

396 

V.  St.  German's  Union, 

720 

V.  Taylor, 

C85 

G8G 

704 

V.  Tuilor, 

117 

V.  Wynne, 

(596 

Tlolfe  V.  I'oterson, 

391 

004 

RoUason  v.  Leon,         95 

98, 

128, 

133, 

134 

419 

RoUeston  v.  Morton, 

271 

IK  New, 

613 

Rolls  V.  Miller, 

667 

Rnlpli  V.  ('rouch. 

680 

683 

Rooke  i'.  Kensington, 

217 

Rose  V.  Foulton, 

189 

Rosemgrave  v.  Burke, 

406 

Rosevvell  v.  Prior, 

736 

Roskruge  v.  Caddy, 

512 

Ross  V.  Clifton, 

526 

Rossiter  v.  Miller, 

89, 

105 

liouse  V.  Bardin, 

700 

Routledge  v.  Grant, 

103 

Rowbothain  v.  Wilson, 

176 

Howe  V.  Brenton, 

195 

V.  Huntington, 

153 

V.  Young, 

397 

Rowley  v.  Adams, 

290 

Rowls  r.  Gells, 

571 

Rubery  v.  Jervoise, 

367 

V.  Stevens, 

289 

291, 

292 

Rumball  v.  Munt, 

32 

V.  Murray, 

270 

V.  Wright, 

237, 

546 

Runimens  v.  Robbins, 

103 

Russell,  Ex  parte, 

441 

V.  Baber, 

665 

V.  Rider, 

463 

V.  Shenton, 

614, 

738 

V.  Stokes, 

165, 

253 

Rutland  v.  Wythe, 

207, 

388 

Ryal  I'.  Rieh, 

748 

Ryan  v.  Clark, 

197 

V.  Shilcock, 

461 

V.  Thompson, 

560 

Ryley  v.  Hicks, 

127 

Ryot  j;.  St.  John  (Lady) 

, 

590 

Sabbarton  v.  Sabbarton, 
Sabourin  c.  Marshall, 
Sacheverell  r.  Froggatt, 
Saebeverill  v.  Forter, 
Sadgrove  r.  Kirby, 
Safl'ery  v.  Elgood, 


385. 


202 

501 
386 
692 
690 
12 


PACE 

Saint  V.  Pilley,  306,  644 

Sainter  ?>.  Ferguson,  99,  392 

St.  Alban's  (Duke)  v.  Ellis,  159,  175 
(Bishop)  V.  Battersby  668 

St.  Cross  (blaster)  v.  Howard  de 

Walden,  381 

St.  Germains  (Earl  of)  ?\  Willan,  755 
St.    John's    College,    Oxford    r. 

Murcott,  443,  491 

St.  John's  Hospital,  Cirencester, 

In  re,  148 

St.  Nicliolas  (Churchwardens  of) 

V.  Sketchley,  32 

St.    Saviour's     (Southwark)     v. 

Smith, 
Sale  I'.  Lambert, 
Salisbury  v.  Ilurd, 

V.  Marshall, 
Salisbury's  case  (Bishop), 
Sallory  v.  Leaver, 
Salmon  v.  Matthews, 

V.  Swan, 
Salter  v.  Grosvenor, 

r.  Kidgley, 
Saltoun  I'.  Houston, 
Sampson  v.  Easterby, 


262 

89 

61 

173 

21 

429 

53,  402 

308 

73 

529 

177 

159,  163,  165, 

177 

686,  708, 


V.  Hoddinott,  686,  708,  71: 

Sanmda  (•.  Lawford,  114 

Sanders  v.  Davis,  643 

In  re,  458 

V.  Karnell,  221 

V.  Pope,  327 

Sandhill  o.  Franklin,  150 

Sandiman  v.  Breach,  135 

Sands  v.  Hempson,  424 

Saner  v.  Bilton,  410 

Sanford,  /n  re,  294 

Sapsford  c.  Fletclier,  399 

Saunders,  In  re,  47 

V.  Merryweather,  253 

V.  Musgrave,  237,  492 

V.  Newman,  709,  712 

Saunderson  v.  Hanson,  560 

Savage  v.  Dent,  800 

V.  Stapleton,  350 

Savil  V.  Bruce,  34 

Saward  v.  Leggatt,  589 

Saxby    V.   Manchester,    Sheffield 

and  Lincolnshire  Rail.  Co.,  736 

Saxon  v.  Blake,  63,  92 

Say  V.  Barwick,  46 
V.  Smith,                      153,  154,  158 

Sayers  v.  Collier,  97 

Scales  r.  Lawrence,  590 

Scaltock  (.-.  Ilarston,  254 

Scheider  r.  Norris,  92 

Sclioles  r.  IIari;-raves,  691 

Schroder  v.  Ward,  689 


Ixiv 


TABLE   OF   CASES   CITED. 


[References  are  to  the  star  paging.] 


PAGE 

PAGB 

Scot  r.  Scot, 

322 

Sheard  v.  Venables, 

265 

Scott  V.  Buckley, 

461 

Sheecomb  v.  Hawkins, 

203 

r.  Matthew  Brown  &  Co. 

330 

741 

Sheehy  v.  Muskerry, 

201 

V.  Scholey, 

270 

Sheen  c.  Rickie, 

620 

V.  Steward, 

207 

Shelburn  r.  Inchiquin, 

108 

V.  Sykes, 

702 

Shelburne  v.  Biddulph, 

364 

Scottish  North-Eastern 

Eail. 

Co. 

Shepheard   ;•.   Hong  Kong, 

&c. 

V.  Stewart, 

114 

Corporation, 

658 

Scudamore  v.  Stratton, 

3f')6 

Shepherd  r.  Hodsman, 

81 

Seago  r.  Deane, 

595 

V.  Keatly, 

246 

Seagood  v.  Meale, 

88 

V.  Walker, 

116,671 

Seaman's  case. 

137 

Sheppard  v.  Doolan, 

109 

Sear  v.  House  Propertj 

'  and  In- 

Sherrington  t.-.  Andrews 

559 

vestment  Society, 

668 

Sherwin  v.  Shakespeare 

238 

Searson  v.  Robinson, 

765 

Shillibeer  r.  Jarvis, 

102,  104 

Seaton  v.  Booth, 

237 

Shine  r.  Dillon, 

542 

V.  Staniland, 

217 

Shipwith  V.  Green, 

140 

Sedden  v.  Senate, 

682 

Shirley  v.  Newman, 

356 

Seddon  r.  Tutop, 

549 

Shirreff  i\  Hastings, 

289 

Sefton  (Ear!)  v.  Court, 

603 

Shopland  r.  Ryoler, 

3 

9,41,67, 

Selby  V.  Browne,      198, 

313, 

520, 

538, 

232,  426 

544 

547 

Shore  v.  Wilson, 

136 

V.  Greaves, 

84 

376 

413 

Shrewsbury's  case. 

229 

597,  609, 

V.  Selby, 

92 

611,618 

Sellers  v.  Bickford, 

171 

Shrewsbury  (Earl  of)  i- 

Goold,     175 

Sellick  r.  Trevor, 

246 

Shubrick  f.  Salniond, 

160 

Sellin  V.  Price, 

183 

Shuttleworth,  Ex,  Deane,  Re,         283 

Sells  V.  Glamis  (Lady), 

418 

i\  Le  Fleming, 

689 

V.  Hoare, 

464 

465 

Silkstone  r.  Dodworth  Coal  and 

V.  Sells, 

217 

Iron  Co., 

433 

Selway  v.  Fogg, 

111 

Simmons  r.  Heseltine, 

109 

Semayne's  case, 

461 

r.  Norton, 

608,  619 

Senhouse  v.  Christian, 

701 

Simons  r.  Farrcn, 

532, 667 

Senior  v.  Armytage, 

138, 

175, 

603, 

r.  Johnson, 

134 

753 

764 

767 

V.  Patcliett, 

63 

Servante  v.  James, 

160 

Simper  r.  Foley, 

704,  736 

Seton  V.  Sladc, 

99 

Simpkin  r.  Ashurst, 

227, 231 

Seven  v.  Mihil, 

398 

443 

Simpson  r.  Clayton, 

163 

255,  366 

Scwcll  r.  Angerstein, 

622 

625 

V.  Gutteridge, 

49 

V.  Jones, 

813 

V.  Hartopp,        434, 

435 

437,  451 

V.  Taylor, 

663 

672 

r.  Lamb, 

()6 

Shadbolt  r.  Woodfall, 

287 

r.  Lewthwaitc, 

700 

Sliadwcll  v.  Hutchinson 

732 

734 

r.  Margitson, 

155,  224 

Shakespeare  ;•.  repi)iii, 

696 

r.  Savage, 

733 

Shannon  r.  Bradslied, 

117 

V.  Scottish  Union  Insurance 

Sliarp  r.  Fowle, 

447 

Co., 

653 

/•.  Key, 

272 

396 

V.  Tittorell, 

290,  313 

r.  Miiligan, 

116, 

110, 

120, 

Sims  V.  Marrvatt, 

647 

358 

408 

Singleton  r.  Williamson 

, 

450 

r.  Scarrott, 

285 

640 

Siordet  v.  Kuczynski, 

187 

1-.  Waterhousc, 

177 

Si.\  Carpenters'  case, 

415 

406,  524 

?•.  Wright, 

116 

Skeatc  v.  Beale, 

4(i 

Sharpies  »•.  Kickard, 

187 

Skelton  r.  Cole, 

88,  93 

Shaw  r.  Bran. 

47 

Skerry  v.  Preston, 

414,  533 

I',  (.'oftin, 

182 

Skidmore  r.  Bootli, 

463 

V.  Jersey  (Earl  of), 

420 

Skinner  1'.  MDowall, 

105 

V.  Kay,"       144,  161 

IGl 

inn 

5SH 

Skii)worth  r.  (Jreen, 

213.216 

f.  Stenton, 

680 

(W.\ 

Skull  V.  Glenister,        79,  82 

699,  701 

Sheape  r.  Culpepper, 

512 

Slack  V.  Crewe, 

66 

TABLE    OF   CASES    CITED. 


Ixv 


[ReferenoGB  are  to  the  star  paging.] 


Slack  V.  Sharp,  306,  406, 

Slater  v.  Daiigerfield, 

i;.  Stone,  167, 

Slator  V.  Brady, 

V.  Trimble, 
Sleap  V.  Newman, 
Sleddon  v.  Cruikshank, 
Slingsby's  case. 
Slipper  V.  Tottenham  and  Hamp- 

stead  Junction  Kail.  Co.,     172, 
Sloper  V.  Saunders, 
Smalley  v.  Hardinge,  278, 

Smallman  ;;.  Agborow, 

V.  Pollard, 
Smart  v.  Harding, 

V.  Jones, 
Smartle  c.  Williams, 
Smith  and  Scott,  Re, 

and  Bustard's  case, 

V.  Adkins, 

V.  Arnold, 

V.  Ashforth,  464,  477, 

V.  Barrett, 

i;.  Capron, 

V.  Carter, 

V.  Chance, 

V.  Chichester, 

i;.  Clark, 

V.  Clegg,  195, 

V.  Compton, 

V.  Darby, 

V.  Day, 


149,  152,  205, 
216 


V.  Durrant, 
r.  Egginton, 
V.  Eldridge, 
V.  Farr, 
V.  Goodwin, 


635,  545, 

416, 

V.  Harwich  (Mayor,  &c.  of), 
V.  Howden, 
V.  Humble,  558,  560, 

570, 
V.  Jersey  (Earl  of),  137, 

V.  Jones, 
V.  Kenrick, 
V.  Malings, 

V.  Mapleback,   264,  297,  298, 
386  421,  426, 
V.  Marrable,  174, 

V.  Milles, 
V.  Neale, 
V.  Pearce, 

V.  Peat,  688, 

V.  Pocklington, 
V.  Raleigh, 
V.  Render, 

V.  Russell,  443,  491, 

V.  Scott, 
V.  Smith,  293, 


551 
248 
594 
38 
38 
291 
641 
160 

660 
540 
281 

43 
492 
242 
126 
263 
378 
321 

75 
163 
525 

16 

91 
612 
763 
370 
353 
196 
680 
176 
211, 
421 
168 
376 
552 
468 
486 
177 
698 
569, 
580 
206 
212 
715 
401 
301, 
429 
598 
732 

94 
400 
600 

55 
544 
645 
494 
534 
294 


Smith  V.  Tett, 

V.  Torr, 

V.  Twoart, 

V.  Walton, 

V.  White, 

V.  Widlake, 

V.  Wilson, 

V.  Wright, 
Smyth  V.  Carter, 

V.  Nangle, 
Sneesby  r.  Thorne 
Snell  (•.  Finch, 
Snow  V.  Cutler, 
Soady  v.  Wilson, 
Soathwell  v.  Scotter, 
Solley  V.  Wood, 
Solly  V.  Forbes, 
Somerset  (Duke)  v.  Fogwell, 
Soprani  r.  Skurro, 
Sorsbie  v.  Park, 


PAOB 

791 

421,  487 

635,  541,  550,  552 

137,  348,  382 

198,  629,  633,  664 

8 

137 

488 

612 

3(i5 

110,  115 

425,  430,  460,  512 

203 


570 
307 

78,  366 
135 

82,  83 
189 
160 


Soulsby  V.  Neving,  543,  746 

Souter  I.-.  Drake,  95,  244 

Southall  (.'.  Leadbetter,  378,  555,  557 
Southampton  v.  Brown,  385,  528 

Soutlicomb  V.  Exeter  (13ishop),  115 
Soutlicote  y.  Hoare,  160 

South-Eastern  Kail.  Co.  v.  Knott,  115 
South  Kensington  Stores,  In  re,  433 
Southouse  V.  Jenkins,  4 

Spark  V.  Smith,  263 

Sparrow  v.  Bristol  (Earl),  270 

V.  Hawkes,  357 

Spedding  i\  Nevell,  62 

Spencer  i-.  Marriott,        677,  678,  082 

V.  Parry,  562,  565 

Re,  39 

Spencer's  case,        162,  166,  239,  254, 
258,  263 
Spicer  v.  Barnard,    717,  721,  724,  726 
Spike  V.  Harding,  615 

Spragg  V.  Hamtnond,  561 

Spratt  V.  Jeffery,  246,  259 

Squier  v.  Mayer,  629 

Squire  v.  Campbell, 

v.  Whitton, 
Stacey  v.  Whitehouse, 
Stadhart  v.  Lee, 
Stafford  v.  Gardner, 

(Marquis)  v.  Coyney, 

(Mayor  of)  v.  Till, 
Stamford  and  Warrington  (Earl) 

V.  Dunbar, 
Stancliffe,  app.,  Clarke,  rcsp.,  390,  393 
Standard    Discount   Co.   v.    La- 
grange, 795 
Standen  v.  Chrismas,               252,  596 
Stanley  v.  Hayes,                      569,  677 

V.  Towgood, 

V.  AVharton, 


112 
88 
723 
169 
754 
699 
540 

686 


589 
472 


TABLE   OF   CASES    CITED. 


[References  are  to  the  Btar  paging.] 


Stausfeld  v.  Portsmouth  (Mayor),  270, 
631,  U4-1 
Staple  V.  Heydon,  82 

Stapylton  v.  Clough,  355 

Statham  f. Liverpool  Docks  Trus- 
tees, 368 
Stavely  ;'.  Allcock,                            421 
Stead  V.  Creagli,  286 
V.  Dawber,  93 
Stedinan  u.  Bates,                              423 
V.  Page,                                423,  459 
V.  Smith,                                       614 
Steele  v.  Mart,  150,  151, 161, 190,  538 
V.  Midland  Rail.  Co.,                140 
V.  Western,                                  611 
V.  Wright,                                    409 
Steevcn's  Hospital  v.  Dyas,             119 
Stephen,  Ex  parte,  Lavies,  In  re,    280 
Stephens  v.  Bridges,                          308 
r.  Hothan),                                   117 
Stephenson's  case,                            159 
Stevens  v.  Adamson,                107,  243 
V.  Austin                                     109 
V.  Copp,                              166,  182 
V.  Evans,                                      572 
I'.  Gourley,                                   730 
Stevenson  v.  Lamhard,    261,  264,  401 
V.  Liverpool  (Mayor  of)  49 
V.  Newnham,                               465 
V.  Wood,                                       284 
Steward  v.  Lombe,                            640 
Stewart  r.  AUiston,  89 
r.  Aston,                                       199 
f.  Eddowcs,                                    93 
Stocker  v.  Phmet  Building  Soc,    599 
Stockley  v.  Stockley,                         100 
Stockport  Water   Works  Co.  r. 

Potter,  125,  710,  710 

Stockton  Iron  Co.,  Tn  re,         234,  282 

Stokes  V.  Cooper,  544 

V.  Russell,  165,  253,  372 

Stokoe  V.  Singers,  706 

Stone  I'.  Evans,  261,  263 

V.  Rogers,  186 

V.  Whiting,  304 

Storer  c.  Hunter,  639 

Storey  v.  Robinson,  435,  442 

Story  ;•.  Finiiis,  488 

V.  Johnson,  38 

Stott  V.  Clegg,  81 

Stoughton  r.  Leigh,  424 

Stowcll  r.  l{ol)insoM,  93,  243,  247 

Stra<'han  i-.  'j'liomas,  533 

Stradlirookc  v.  Malchy,  751 

Straiiks  r.  St.  John,  95,  075 

Stratford  r.  Boswortii,  105 

Strattoii  r.  IVttitt,  i:;2 

Strickland  /•.  Eawcett,  696 

V.  Maxwell,  135,  339,  701 


PAGB 

Strutt  V.  Robinson,  187 

Stuart    V.    London     and    North 

Western  Rail.  Co.,  91 

Stubbs  V.  Estcourt,  690 

V.  Parsons,  414,  560,  568 

Stukely  v.  Butler,  426 

Sturgeon  v.  Wingfield,         2,  55,  213, 

214,  548 

Styles  V.  Wardle,  150,.151 

Suffield  V.  Brown,  702,  713 

Sullivan  v.  Bishop,  414,  745,  749 

V.  Jones,  549,  550 

Sumner  v.  Bromilow,  043 

Sunipter  i\  Cooper,  193 

Sunderland  v.  Newton,  622,  631 

Overseers      v.      Sunderland 

Union,  673 

Surconib  v.  Pinniger,  101 

Surplice  r.  Farnsworth,  173 

Sury  V.  Brown,  81 

V.  Pigot,  82 

Sussex  (Countess  of)  v.  Wroth,     203 

Sutcliffe  V.  Booth,  712 

Sutherland  v.  Briggs,  93,  100 

Sutton,  /;;  re,  443 

v.  Dorke,  523 

V.  Jones,  203 

V.  Rees,  443 

V.  Temple,  173,  174,  698 

Sutton's  case,  9 

Swaine  v.  Hoinian,  71 

Swan  V.  Stransliam,  173 

Swann  ^•.  Falmouth  (Earl),    416,  464 

Swansea  Bank  r.  Thomas,  406 

Swatman  r.  Ambler,  99,161,189,537 

Sweet  V.  Seager,  555 

Sweeting  v.  Turner,  244 

Swinfen  r.  Bacon,  746 

Swire  V.  Leach,  485,  440,  523 

Sym's  case,  44 

Synie  v.  Harvey,  636 

Symonds  ;;.  Seaborne,  738 

Symons  v.  Symons,  404 


Talbot  v.  Tipper,  382 

Talentine  v.  Denton,  421 

Tancred  r.  Christy,  743 

r.  Levland,  464 

Tanficld  v.  Rogers,  380 

Tanham  r.  Niciiolson,  344 
Tankerville  (Lord)  v.  Wingfield,  200 

Tanner  v.  Christian,  (>;! 

V.  Wasiibonrne,  753 

Taplin  r.  Florence,  714 

'!'a])!ing  r.  Jones,  686,  705 

Tapj)  r.  Jones,  390 


TAT5LE   OF    CASES    CITED. 


Ixvii 


[References  are  to  the  star  paging.] 


Tarte 

V.  Darby, 

304 

Tasker  v.  EuUman, 

81 

172, 

410 

Tate  I 

.  Gleed, 

4.50 

Tateii 

V.  Chaplain, 

163 

663 

Tatham  v.  Piatt, 

91 

Taunton  u.  Costar, 

741 

Tawell  r.  The  Slate  Co. 

, 

798 

Tawney  c.  Crowtlier, 

105 

Tayleur  v.  Wildin, 

210, 

355 

Taylor  r.  Caldwell, 

110, 

125 

V. 

Chapman, 

2 

304 

V. 

Cole,               270, 

272 

741, 

787 

V. 

Eastwood, 

737 

V. 

Evans, 

5(i6 

V. 

Henniker, 

465 

V. 

Horde,  120,  199, 

200 

203, 

387 

V. 

Jackson, 

131 

V. 
V. 

I^anyoii, 
Necdliam, 

491 
215 

V. 

Phillips, 

635 

V. 

Portino'ton, 

114 

V. 

Shafto, 

680 

V. 

Shun,             101, 

261, 

262, 

290 

V. 

Stendall, 

614, 

734 

V. 

Stibbert, 

9 

V. 

Taylor, 

6 

Taylorson  r.  Peters, 

454, 

8.39 

Temp 

e  r.  Brown, 

675 

Temp 

eman  v.  Case, 

502 

Tennant  ),'.  Field, 

415, 

466, 

476 

V. 

Golding, 

739 

Tew  V 

.  Jones, 

238, 

637, 

546 

■    V. 

Harris, 

354 

Thack 

er  V.  Wilson, 

292 

Thack 

erav  v.  Wood, 

077, 

680 

Thetford  (Mayor)  v.  Ti 

ier. 

222 

.540 

551, 

744 

Thomas  v.  Brown, 

89 

V. 

Cadwallader, 

108 

594 

V. 

Cook, 

304, 

542 

V. 

Fredericks, 

83, 

546 

V. 

Harries, 

415 

466, 

477 

V. 

Hayward, 

165, 

664 

V. 

Packer,  181,  221 

223 

311, 

312 

V. 

Patent  Lionite  Co., 

433 

V. 

Reece, 

349 

V. 

Thomas, 

704 

716 

V. 

Thorn 

Williams, 
ison  ('.  Brown, 

552 
171 

V. 

Gibson, 

732 

736 

V. 

Guy  on, 

368 

V. 

Hakewill, 

11, 

WO, 
423, 

252, 
530 

V. 

Tnji;ham, 

814 

V. 

Lapworth, 

555, 

556 

V. 

Maberley, 

155, 

337 

V. 

Mashiter, 

441 

V. 

Pettitt, 

434, 

4.38, 

<i4() 

V. 

Thompson, 

289, 

396 

Thompson  )'.  Tomkinson, 

V.  Wilson, 
Thomson  v.  Waterlow, 
Thorn  v.  Woolconibe, 


PAOB 

802 
302 
142 

258,  310,  372. 
426 
666 
469 
672 
761 

300,  317,  421 


Thornewell  i'.  Johnson, 
Thornton  r.  .Vdanis, 

r.  Slierratt, 
Tliorpe  V.  Eyre, 
'I'hn^r  f.  Barton, 
Thresher  v.  East  London  W.  W. 

Co.,  592,  637,  640 

Throgmorton  r.  Whelpdale,  362 

Thrustout  V.  Coppin,  50 

Thunder  v.  Belcher,  13,  52,  232, 

340,  341 
Thurgood  v.  Richardson,  492,  494 
Thursby  v.  Plant,  261 

Thwaites  r.  Wilding,  446 

Thynn  v.  Chohnley,  390 

Thvnne  v.  Glengall,  102 

Tic'kle  r.  r,rown,  689,  704 

Tiiley  r.  Mollett,  95,  98,  128,  132,  595 
Tidswell  v.  Whitworth,  556 

Tildeslev  v.  Cinrkson,      106,  110,  111 
Till,  Ex  parte,  Mayhew,  Li  re,       283, 

432 
Tillett  V.  Charing  Cross  Bridge 

Co.,  113 

Tiiley  r.  Thomas,  99,110,116 

Tilvey  v.  Norris,  291 

Timniins  r.  Rowlinson,    227,  345,  749 
Tinckler  v.  Prentice,       394,  555,  562, 

5()5 
746 
674,  679 
230 
276,  278,  281 
7.35 
323,  671 
43 
220 
322,  382 
100 
702 
401,  551 
321 
221,. ".3,3 
100 
460,  461 
306,  611 
225 
537,  542 
43 
453 
622 
187 
262 
658 


Tingrcy  r.  Brown, 
Tisdale  v.  Essex, 
Title  ?'.  Grovett, 
Titterton  v.  Cooper, 
Todd  V.  Flight, 
Toleman  ?■.  Portbury, 
Toler  r.  Slater, 
Tomkins  i\  Lawrence, 

IK  Pinsent, 
Tomkinson  v.  Straight, 
Tomlin  v.  Fuller, 
Tondinson  v.  Day, 
Toms  (•.  Wilson, 
Tooker  i'.  Smith, 
Toole  V.  Medlicott, 
Topi  is  V.  Grnne, 
Torriano  r.  Young, 
Towne  r.  Campbell, 

V.  D'Heinrich, 
Trac3'  r.  Dalton, 

V.  Talbot, 
Trappes  v.  Harter, 
Traviss  v.  llargreave, 
'I're:nli>  r.  Coke, 
Treloar  v.  Bigge, 


Ixviii 


TABLE   OF   CASES    CITED. 


[References  ave  to  the  star  paging.] 


PAGE 

Tremeere  v.  Morison,  291 

Trent  v.  Hunt,  50,  341,  425,  430,  460, 
405,  478,  512,  538,  747 
Treport's  case,  318 

Tresham  v.  Lamb,  139 

Tress  v.  Savage,  99, 128, 133,  222,  339 


Trevillian  r.  Pine, 
Trevivan  ?■.  Lawrence, 
Tristan  v.  Baltinglas, 
Tritton  v.  Foote, 
Trumper  v.  Truinper, 
Tucker  v.  Linger, 

V.  Morse, 

V.  Newman, 
Tulk  V.  Moxhay, 
Tunimons  i-.  Ogle, 
Tunnicliffe  r.  Wilmot, 
Tupper  V.  Foulkes, 
Turner,  In  re, 

V.  Allday, 

V.  Barnes, 

V.  Cameron, 


460,  512 

213 

207 

364 

364 

168,  180 

9 

734 

163 

500,  505,  508 

500,  516 

63,  190 

264,  533 

395 

413,  427,  454 

438 


i;.  Cameron's  Coalbrook,  &c. 

Co.,  52,  197,  537,  738 

V.  Doe,  228 

V.  Ford,  415,  417,  489,  499 

V.  Hardey,  359 

V.  Hodges.  60 

V.  Hutchinson,  (52 

V.  Lamb,  600 

V.  Marriott,  97,  113 

V.  Power,  187 

V.  SheflBeld  and  Rotherham 

Hail.  Co.,  734 

Turnor  v.  Turner,  500,  517 

Tutton  i\  Darke,  452 

Tweed  v.  Mills,  259 

Tweedy,  Ex  jiarte,  Trethowcn, 

Re,  642 

Twynam  v.  Pickard,        253,  255,  264 
Tyler  v.  Wilkinson,  709 

Tylcy  V.  Seed,  335 

Tyrringham's  case,  691 

U. 

(IvDKRHAY  V.  Undorliay,  146 

Underhill  v.  Ilorwood,  150 

Underwood  v.  Burrows,  220 

Upsdill  V.  Stuart,  050 

Upton  V.  CJreenlces,  409 

V.  'I'ownend,  409,  532 

Utlnvatt  r.  lOlkins,  74,  545 

Utty  Dale's  case,  10 


133, 


Van  V.  Corpe, 
Varley  v.  Coppard, 
Vas})er  v.  Eddows, 
Vaughan,  Ex  parte, 

V.  Hancock, 

V.  Taff  Vale  Rail.  Co., 
Vaugliton  V.  Brine, 
Vaux's  (Lord)  case, 
Venning  v.  Bray, 
Vere  v.  Loveden, 
Vernon  i\  Smith, 

V.  Vernon, 
Vertue  v.  Beasley, 
Vickers  v.  Vickers, 
Vincent  v.  Godson, 

V.  Siiarp, 
Viner  r.  Vaughan, 
Vivian  v.  Blomberg, 

V.  Jegon, 

V.  Mote, 
Voise.v,  Ex  parte,  Knight,  In 

Vollans  r.  Fletcher, 
VoUer  r.  Carter, 
A^onhoUen  r.  Knowles, 
Vowles  V.  Miller, 
Voyce  V.  Voyce, 
'  Vyse  V.  Wakefield, 
Vyvyan  i'.  Arthur, 


W. 


FAGK 
121 
661 

475 

328,  833 

87,  419 

651 

94 

157 

92 

121 

164,  654 

404 

415,  465 

113 

222,  419 

292 

607 

21 

199 

360,  361 

re,    282, 

283 

94 

538 

134 

614, 732 

614 

595 

163, 173 


Vallance  v.  Nasli,  513 

Valiant  v.  Dodmede,  201 


WAimnLi,  i\  Wolfe, 
Waddilove  r.  Barnett, 
Waddington  r.  Francis, 
Wade  V.  Baker, 

V.  Marsh, 
Wadham  r.  iMarlow, 

r.  Postmaster-General, 
Wakeman  r.  T>itulsev, 

r.  Walker, 
Wakley  r.  Froggatt, 
Walker  r.  Constable, 

I'.  Gode', 

r.  Hatton, 

V.  Jefferys, 

V.  Keeves, 

V.  Richardson, 

?'.  Wakeman, 

r.  Walton, 
Walkeu's  case, 
Wallace  v.  King, 

V.  McLaren, 
Wallen  r.  Forestt, 
Waller  v.  Andrews, 


246 

54 

187 

40 

422 

001 

068 

466,  478 

207 

126 

243 

349 

531,  589,  601 

110 

261.  202 

10,70 

80 

265 

401,  532 

479 

422 

804 

397,  414.  555, 

507,  571 

V.  Dean  &  Ch.  of  Norwich,      189 

Wallis  1-.  Delmar,  32,  229 


TABLE   OF   CASES   CITED. 


[References  are  to  the  star  paging.] 


Wallis  r.  Harrison, 

i;.  Littill, 
Walls  V.  Atchesoi), 
Walmslcy  r.  Milne,    52, 

V.  Pilkiiiijrton, 
Walrond  r.  Hawkins, 
Walsal  V.  Heath, 
Walsh  V.  Davis, 

V.  Fussell, 

V.  Lonsdale,         86, 

V.  Trevanion, 

I'.  Watson, 
Walter  ;;.  Riimball,   457 
Walters  v.  Morgan, 

V.   Northern    Coal 
Co., 
Walton,  Ex  parte,  Levy, 
Wankford  v.  Wankford, 
Wansbrough  v.  Maton, 
Warburton  c.  Loveland, 
Ward  V.  Clarke, 

V.  Const, 

V.  Day,       125,  322, 

V.  Hartpole, 

V.  Henley, 

V.  Luniley,  129, 

V.  Mason, 

V.  Robins, 

V.  Shew, 

V.  Smith, 

V.  Ward, 
Wardell  v.  Usher, 
Wardle  i'.  Brocklehurst, 
Wardroper  v.  Cutfield, 
Waring  v.  Dewberry, 

V.  Hoggart, 

t'.  King, 
Warner  v.  Murdock, 

V.  Potciiott, 

V.  Willington, 
Warren  i'.  Matthews, 

V.  Richardson, 
Warwicke  v.  Noakes, 
Washborn  r.  Black, 
Waterfall  v.  Penistone, 
Waterflow  v.  Bacon, 
Waterloo  Bridge  Co.  v. 
Waterman  v.  Soper, 
Waters  v.  Weigall, 
Walking  v.  Major, 

V.  Overseers  of  Mi 
Gravesend, 
Watkinson  ?'.  Man, 
Watson  V.  Atkins, 

i\  Holme, 

V.  Lainc, 

V.  Main, 

V.  M'Lean, 

V.  Waltham, 


120,  280 

247 

304,  407,  542 

025,  028,  036 

305 

325,  0()9 

43 

103 

165 

132,  335,  597 

183 

103 

,475,478,481 

111 

Mining 

78,  98,  115 

Re,  278 

49 

621 

194 

540 

559,  509 

323,  324,  417 

200 

520 

199,  297,  534 

550,  552 

080 

429,  459 

531 

686,  707,  711 

017,  036 

712 

405 

492 

244 

542,  744 

96 

22 

88,  92,  103 

695 

100,  112,  246 

397 

476 

642 

120 

508 

017 

400 


Cull, 


Iton  next 

125 

19 

554,  557,  559 

558,  568,  509 

040 

408 

212 

203 


Watson  )'.  Waud, 
Weatlierell  ;'.  Geering, 


410,417 
110,  117,  118 


Webb  V.  Austin, 
V.  Bird, 
V.  Hughes, 
V.  l^lummer, 
V.  Rhodes, 
V.  Rorke, 
V.  Russell, 


'o'Z,  'o'o, 


Wcddall  V.  Capes, 
Weeding  v.  Mason, 

V.  Weeding, 
Weekly  v.  Wildman, 
Weeks  v.  Maillardet, 
Weeton  v.  Woodcock, 
Weigal  V.  Waters, 
Welby  IK  Phillips, 
Welch  V.  Myers, 
Welcome  v.  Upton, 
Wehl  V.  Baxter, 
Welford  r.  Beazeley, 
Wells  V.  Attenborough, 

V.  Moody, 

V.  Partridge, 

V.  Suffield  (Lord), 
Werdon  v.  Pickering, 
Wesley  v.  Walker, 
West,  7?e, 

V.  Blakeway, 

V.  Dobb, 

V.  Fritchie, 

11.  Hedges, 

V.  Lascelles, 

V.  Nibbs, 

V.  Steward, 
Westbrook  v.  Blythe, 
Westerdell  v.  Dale, 
Weston  V.  Collins, 

V.  Metropolitan 
Board, 
Westwood  V.  Cowne, 
Wethferell  v.  Howells, 


213,  254 

717 

99 

138,  175,  701,  762 

195 

78 

165,  253,  254,  306, 

309,  310,  317,  372 

298 


600 

373 

77 

183 

643 

408,  592 

384 

469 

686 

9,  532 

88 

668 

464,  626 

61 

797 

559 

90 

642 

171,  622,  629,  638 

165,  314,  656 

234,  341 

491 

400 

417,  468 

183,  199 

194 

263 

116 

316 

480 


Asylums 


618,  627,  636, 

711 

Whaley  v.  Laing,  685,  709 

Wharton  v.  Naylor,  437,443,490,493 


Whoate  r.  Hall, 
Wheatley  ?■.  Boyd, 

V.  Brymbo  Coal  Co., 
Wheeler  v.  Branscombe, 

V.  Gray, 

r.  Hey  don, 

r.  Montefiore, 

c.  Stevenson, 

r.  Wright, 
Wheldon  v.  Matthews, 
Whetstone  v.  Davis, 
Whistler  v.  Paslow, 
Whitaker  r.  Wisbey, 


103 

161,  539 

669 

64,  539 

731 

24 

197,  235,  732,  738 

320,  809 

246 

186 

799 

178, 179 

47 


Ixx 


TABLE   OF   CASES   CITED. 


[References  are  to  the  star  paging.] 


PAGE 

White  V.  Bass,  702,  704 

V.  Bayley,  236 

V.  Binstead,        492,  493,  495,  497 

t'.  Cuyler,  63 

V.  Greenisli,  502,  512 

V.  Jameson,  735,  737 

V.  Leeson,  206,  703 

V.  Nicholson,  588 

V.  Sayer,  755 

V.  Sniale,  59,  430 

V.  Wakley,  591,  742 

I'.  Warner,  328 

V.  Willis,  525 

Wliiteacre  v.  Sj^monds,  357 

Wliitehead  v.  Bennett,  628 

V.  Clifford,  303,  550,  552 

V.  Parks,  711,  714 

V.  Taylor,  427,  460 

Whitelock  v.  Hutchinson,  691 

Whitenian  v.  King,  424,  693 

Whitfield  v.  Brandvvood,  558,  560,  569 

V.  Pindar,  404 

V.  Weedon,  615 

Whitley  v.  Koberts,  422 

Whitlock  V.  Horton,  11,  132 

Whitlock's  case,  386 

Whitmore  ;■.  Empson,  642 

V.  Humphries,  742 

V.  Walker,  54 

Whittaker  r.  Barker,  764 

Whittington,  ^.r /OT?-<e,  605 

Whittonie  v.  Lamb,  158,  385 

Whitton  V.  Peacock,  253,  697 

Whitty  V.  Lonl  Dillon,  616,  650 

Whitworth  r.  Humphreys,  801 

V.  Maden,  464,  520 

V.  Smith,  523,  525 

Wickenden  v.  Webster,  666 

Wickhani  r.  Bath   (Marquis  of),     69 

V.  Hawker,         179,  684,  695,  718 

V.  Lee,  748 

Wigglesvvorth  v.  Dallison,      138,  175, 

603,  753,  755 

Wight  V.  Dicksons,  (i73 

Wilbraham  v.  Livesay,  6(i4 

j;.  Snow,  415,489 

Wilcox  V.  Marshall,  96 

V.  Kedhead,  105 

Wilcoxon  V.  Searby,  497 

Wild  V.  Baxter,  531 

Wildbor  V.  Rainforth,  833 

Wilde  r.  Waters,  626,  645 

Wilder  r.  Speer,  474 

Wilkiiis  r.  Fry,  254 

V.  Wingate,  532 

>:  Wood,  138,  176,  603 

Wilkinson  v.  Calvert,  336,  728 

V.  Cawood,  399 

V.  Clements,  115 


PAOB 

343,  746,  790 
580 


Wilkinson  v.  CoUey, 
V.  Collier, 

V.  Evans,  88 

V.  Gaston,  150 

V.  Grant,  196 

V.  Hall,        160,  224  235,  333,  745 

1).  Hay  garth,  611,694 

V.  Rogers,  164,  663 

Wilks  V.  Back,  63 

Willesden  (Overseers  of)  v.  Over- 
seers of  Paddington,  333 

Williams,  E.r  parte,  234,  282 

V.  Bartholomew,  325,  396 

V.  Bosanquet,  261,  263,  319 


V.  Burrell, 

173, 

675,  678 

V.  Earle,     163, 

164, 

165, 

166,  657 

V.  Evans,        2, 

101, 

258, 

263,  642 

V.  Groucott, 

615,  738 

V.  Ha  J' ward. 

252, 

264,  402 

V.  Headland, 

294 

V.  Heales, 

290 

V.  Holmes, 

441 

V.  James, 

699 

V.  Jones, 

125,  526 

V.  Jordan, 

88 

V.  Lake, 

88 

V.  Lewsey, 

493 

i;.  Moreland, 

685 

V.  Morris, 

481 

V.  Roberts, 

468,  469 

V.  Sawyer, 

297 

V.  Stiven, 

356, 

413 

418,  453 

V.  Williams, 

103, 

601,  636 

Williamson  v.  Will 

anison. 

657 

Willingale  v.  Maitl 

ind. 

77 

Willingham  r.  Joj'ce, 

106,  118 

Willington  r.  Brown, 

215 

AVillis  r.  Parkinson 

, 

615 

r.  Whitewood, 

40,41 

Willoughby  v.  Backhouse, 

464,  465, 

525 

Wills  V.  Stradling, 

100 

Wilmore  r.  Cain, 

142 

Wilmott  )'.  Barber, 

111 

Wilson,  AV, 

281 

Kx  parte. 

538 

V.  Abbott, 

221,  225 

V.  Anderson, 

141 

V.  Bagshaw, 

703 

V.  Davenport, 

414 

V.  Hart,       162,  164,  664,  672,  677 
?•.  Fincli-Hatton,  174,  5!»1 

i\  Nightingale,  478 

I..  Sewell,  203,301,304 

V.  Wallani.  278 

V.  West      Hartlepool      Rail. 

Co..  100,  119 

V.  Whateley  638 

V.  Wigg,  290,  291 


TABLE   OF   CASES   CITED. 


Ix 


XI 


[ReferenceB  are  to  the  star  paging.] 


Wilson  !'.  Willes, 

V.  Wilson,  24c 

Wilton  r.  Dunn, 
WiltshirL'  v.  Cottrell,    • 

V.  Siilford, 
Winch  c.  Winchester, 
Windham's  case, 
Windsinore  v.  Hubbard, 
Windsor's  case  (Dean  and  C 
Winn  V.  Bull, 
Winter  v.  Erockwell, 

V.  Duinergue, 

V.  Loveday,  200, 

V.  Trimmer, 
Winterbottom  v.  Ingliam, 
Winterbourne  v.  Morgan, 
Wintle  V.  Freeman, 
Wiscot's  case, 
Wise  V.  Metcalfe, 
Withers  v.  Birchman, 
Witty  V.  Williiims, 
WoUaston  v.  Halcevvill,   162, 

Wolveridge  v.  Steward,  IGl, 

Womerslcy  v.  Dalley, 
Wood  and  Chiver's  case, 

V.  Beard, 

V.  Clarke, 

V.  Coj)])er  Miners'  Co., 

V.  Davis, 

V.  Day,  168, 

V.  Hewett, 

V.  Keep, 

V.  Leadbitter,      79,  126, 

V.  Manley, 

V.  Midgley, 

V.  Nunn, 

V.  Rowcliffe, 

V.  Scarth, 

V.  Tate, 

V.  Waud,  707,  711, 

Woodcock  V.  Gibson, 

V.  Nuth, 

V.  Titterton, 
Woodcroft  V.  Thompson, 
Woodgate  i'.  Knatchbull, 
Woodhouse's  case, 
Woodhouse  v.  Jenkins, 

V.  Walker, 
Woods  V.  Durrant, 

V.  Hyde,  115,  118, 

V.  Pope, 
Woodward  ?-•.  Aston, 

V.  Gyles, 
Woolam  V.  Hearn, 
Woolaston  v.  Hakewill, 

app.,  Stafford,  resp., 
Woolcock  r.  Dew, 


PAGE 

694 

,247 

,  654 

54 

620 

628 

614 

112 

153 

145 

.of) 

163 

105 

714 

247 

205 

210 

390 

2.37 

54(J 

479 

491 

43 

597 

160 

378 

258, 

264, 

289 

291 

261, 

262, 

263 

764 

324 

394 

154 

440 

159 

90 

155 

169, 

532 

624 

111 

481, 

714 

481, 

714 

105 

463 

183 

) 

111 

428 

712, 

716 

32 

304, 

305 

457 

475 

472 

150 

676 

610 

476 

344, 

345 

600 

300 

391, 

612 

91, 

112 

191 

487 

589 

PACK 

Wooler  I'.  Knott, 

670 

Wooley  V.  VV'atling, 

537 

Wootley  tK  (Jregory, 

372 

478 

Wootton  )'.  Hele, 

679 

V.  Steffenoni, 

72 

252 

Worcester   School   Trustees 

V. 

Rowlands, 

589 

591 

599 

Worledge  r.  Benbury, 

61 

Worinald  v.  Maitland, 

191 

193 

Worthani  r.  Lord  Dacre, 

369 

Wortliington  r.  Ginison, 

142 

,703 

714 

t'.  Warrington, 

95 

186 

Wrenford  v.  Gyles, 

158 

296 

Wright  V.  Burroughs, 

255 

V.  Cartwright, 

144, 

146, 

158 

V.  Colls, 

95 

I'.  Dewes, 

443 

V.  Dickson, 

135 

V.  Goff, 

217 

V.  Howard, 

708 

V.  St.  George, 

104 

V.  Smith, 

388, 

746 

V.  Stansfield, 

193 

11.  Stavert, 

87 

I".  Tracy, 

221 

V.  Williams, 

687, 

710 

Wrighton  r.  Newton, 

247 

Wrotiesley  v.  Adams, 

153 

Wyatt  V.  Cole, 

221, 

222 

Wyburd  v.  Tuck, 

144 

Wyndham  r.  Way, 

179, 

617, 

637 

Wynne  v.  Bampton, 

378 

V.  Ingleby, 

629 

V.  Newborough, 

68 

Y. 

Yates  7-.  Boen, 

45 

V.  Church, 

8 

V.  Cole, 

253 

V.  Eastwood, 

485, 

524 

V.  Jack, 

705 

V.  Ratledge, 

491, 

492 

Yellowly  v.  Gower, 

175, 

206, 

387 

Yeo  V.  Leman, 

558 

Yeoman  ?•.  Ellis, 

237 

V.  Ellison, 

419 

Young  ('.  Brompton,  &c. 

,W. 

W. 

Co., 

505 

V.  Holmes, 

49, 

287 

V.  Mantz, 

589 

r.  Raincock, 

679, 

683 

V.  Spencer, 

608 

Zappert,  Re,  280 

Zerf  ass,  Er  parte,  Sandwell,  In  re,  279 

Zouch  V.  Parsons,  38,  301 

V.  Willingale,  324,  356,  420 


LIST  AND  EXPLANATION  OF  THE  ABBREVIATIONS. 


A.  &E. 

Aml)l.  . 
Andr.   . 
Anstr.  . 
Atk.      . 
Bac.  Abr. 
Ball  &  B. 
Barnard. 
Barnes 

B.  &  A. 
B.  &  Ad. 
B.  &  C. 
B.  &  S. 
Beav.  . 
Bing.  . 
Bing.,  N.  C. 

Blac.  Com. 

Blac.  H.  . 
Blac.  W.  . 

Bli.       .     . 

Bli.  N.  S. 
B.  &  P.     . 

B.  &  P.,  N. 

Brad  by 

Brid<r.  .     . 

B.  &  B.  . 
Bro.  Abr. 

Bro.  C.  C. 

Bro.  P.  C. 

BuUen  .  . 
Bull.  N.  P. 
Bulst.  .  . 
Buiib.  .  . 
Burr.  .  . 
Camp.  .     . 

C.  B.    .     . 


C.  B.,  N.  S. 
C.  &  E.     . 


Adolphus  &  Ellis. 

Ambler. 

Andrews. 

Anstruther. 

Atkyns. 

Bacon's  Abridgment. 

Ball  &  Beatty  (Irish). 

Barnardiston. 

Barnes's  Notes. 

Barnewall  &  Alderson. 

Barnevvall&  Adolphus. 

Barnewall  &Cresswell. 

Best  &  Smith. 

Beavan. 

Bingham  (Old  Series). 

Bingham,  New  Cases. 

Blaekstone's  Commen- 
taries. 

Henry  Blackstone. 

Sir  W.  Blackstone. 

Bligli's  House  of  Lords 
Cases. 

Bligli's  New  Series. 

Bosanquct  &  Puller. 

Do.  —  New  Reports. 

Bra<ll)y  on  Distresses 
(•2d  ed.). 

Bridgman. 

Broderip  &  liingham. 

Brooke's  Abridgment. 

Brown's  Chancery 
Cases. 

Brown's  Cases  in  Par- 
liament. 

Bullen  on  Distress. 

Bu lien's  Nisi  Prius. 

I'ulstrode. 

Hunbury. 

Burrow. 

Campbeli. 

Common  Bench  T?e- 
y)orts  (by  Maiming, 
Granger  &  Scott). 

Common  Bench  Re- 
ports, New  Series 
(by  Scott). 

Cababe  &  VAUs's  Nisi 
I'rius  Reports. 


C.  &  J.  . 
C.  &  K.     . 

Car.  &  M. 

C.  &  P.  . 

Carth.  .  . 

Ch.  Cas.  . 

Chit.     .  . 

Chit.  Arch. 
Chit.  Forms 

Chit.  Pi.   . 

Cl.  &  Fin. 
Co.  Lit.  . 
Co.  R.  .  . 
Cole  Ejec. 

Coll.  C.  C. 

Comb.  .  . 
Com.  .  . 
Com.  Dig. 

Conn.  &  Law, 

Cowp.  .  . 
Cr.  &  Ph. . 
Cro.  Eliz. . 
Cro.  Jac.  . 
Cro.  Car.  . 
C.  &  M.     . 

C,  M.  &  R. 

Dart  V.  &  P 

D.  &  M.    . 
Dcac.    .     . 
Deac.  &  Chit 
De(}.,F.  &J 
DeG.  &J 
DcG.,J.  &  S 

DcCt.,M.&G 

De  G.  &  Sm. 
Dick.    .     . 
Dougl. 

Dow     ,     , 


Crompton  &  Jervis. 

Carrington  &  Kirwan. 
J  Carrington  &  Marsh- 
\      man. 

Carrington  &  Payne. 

Carthew. 

Cases  in  Chancery. 

Chitty's  Reports. 
f  Chitty's  Archbold's 
\      Practice. 
J  Ciiitty's  Forms  (9th 
I      t'd.). 

j  Chittv  on  Pleading 
\      (7th  ed.). 

Clark  &  Finnelly. 

Coke  upon  Littleton. 

Lord  Coke's  Reports. 

Cole  on  Ejectment. 
/  CoUyer's  Chancery 
\      Cases. 

Coml)erbach. 

Comyn. 

Comyn's  Digest. 
/  Connor  &  Lawson 
t      (Irish). 

Cowper. 

Craig  &  Phillips. 

Croke's  Reports,  vol.  1. 

Croke's  Hei)orts,  vol.  2. 

Croke's  Reports,  vol.  8. 

Crompton  &  IMeeson. 
/Crompton,   Meeson   & 
\      Roscoe. 

I  Dart  on  \''endors  and 
\      Purchasers. 

Davi.-ion  &  Merivale. 

Deacon. 

Deacon  &Chitty. 

De  G('X,Fisher&  Jones 

De  (lex  &  Jones. 

De  (Jex,  Jones  &  Smith 
f  De  (iex,  Macnagiiten 
\      &  (lonlon. 

De  (Jex  &  Smale. 

Dickens. 

Douglas. 
(  Dow's  Reports  in  Par- 
\      liament. 


LIST    AND    EXPLANATION    OF    ABBREVIATIONS.      Ixxiii 


Dow  &  CI. 

Dowl.  .     . 

Dowl.  N.  S. 
D.  &  L.     . . 

D.  &  K.  . 
Drew.  .  . 
Drew.  &Srn. 

Dru.  &  W. 

E.  &  E.  . 
E.,  B.  &E. 

E.  &  E.     . 
Eq.  Ciis.  Abr, 
Esp. 
Excli.   , 

Fitz.  N.  B 

Fort.     . 

F.  &F. 
Freem. 

Fry-.     . 

G.  &D. 
G.  &  J. 
G.  &  M. 
Giff.  . 
Godb.  . 
H.  &C. 
H.  &  M. 
H.  &N. 

H.  &ri. 

H.  &  T. 
Hard.    . 

Hawk.  P.  C. 

Hob.  .  . 
Holt,  N.  P.  C 

H.  L.  Cas. 

Hud.  &  B. 

Hut.     .  . 

Inst.      .  . 

Ir.  Ch. .  . 

Ir.  Eq.  R.  . 

Ir.L.  R.  . 

Jac. .     .  . 

J.  &  W.  . 
Johns.  . 

J.  &  II.  . 

Jon.  &  L.  , 

Jon.  W.  , 
Jon. T.  , 
Jur. .  .  . 
Jur.,  N.  S. 
K.  &  J.      , 


Dow  &  Clnrk. 
(  Dowling's  Practice 
I      Cases. 

Do.  —  (New  Series). 

1  )()\vlin,<>'  &,  Lowndes. 

Dowliny-  &  Kyland. 

D  re  wry. 

Drewry  &  Smale. 
j  Drury  &  Warren 
\      (Irish). 

Ellis  &  Blackburn. 
(  Ellis,  Blackburn  &  El- 
\      lis. 

Ellis  &  Ellis. 

Equity  Cases  Abridg'd. 

Esj)inasse. 

Exchequer  Reports. 
f  Fitzherbert's     Natura 
\      Brevium. 

Fortescue. 

Foster  &  Finlaison. 

Freeman. 

Fry  on  Specific  Per- 
formance. 

Gale  &  Davison. 

Glyn  &  Jameson. 

Gale  &  Merivale. 

Gil't'ard's  Reports. 

Godbolt. 

Hurlstone  &  Coltman. 

Ilenmiing  &  Miller. 

Hurlston  &  Norman. 
/  Harrison     &    Ruther- 
\      furd. 

Hall  &  Twells. 

Hardres. 
f  Hawkins's  Pleas  of  the 
\      Crown. 

Hobart. 

Holt's  Nisi  Prius  Cases. 

House  of  Lords  Cases, 
by  Clark  &  Finnelly 
—  and  Clark. 
I  Hudson  &  Brooke 
\      (L-ish). 

Hiitton. 

Lord  Coke's  Institutes. 

Irish  Chancery. 

Irish  Equity  Reports. 

Irish  Law  Reports. 

Jacob. 

Jacob  &  Walker. 

Jolmson. 

Johnson  &  Hemming. 
I  Jones  &  Latouche 
\      (Irish). 

Sir  Wm.  Jones. 

Sir  Thos.  Jones. 

Jurist  (Old  Series). 

Jurist  (New  Series). 

Kay  &  Johnson. 


Keb.  .  . 
Ken.,  Ld.  . 

L.  J.     .     . 

L.  J.,  O.  S. 

L.  R.,  H.  L. 

L.R.,H.L.Sc. 
L.  R.,  P.  C. 

L.  R.,Ch.Ap 

L.  R.,  Eq.. 
L.  R.,  Q.  B. 
L.  R.,  C.  P. 
L.  R.,  Ex. . 

L.  R.,  C.  C. 

L.  R.,P.  &D 

L.  R.,Adm.& 
Ecc.  .     . 

L.    R.,    App 

Cas.  .     . 

L.  R.,  Ch.  D. . 
L.R.Q.B.D. 
L.R.,C.P.D. 

L.  R,  Ex.  D. 

L.  T.    .     . 

L.  T.,  O.  S. 

Leg.  Obs. . 
Leon.  .  . 
Lev.  .  . 
Lit.  .     .     . 

L.,  M.  &  P. 

Lutw.  . 
M'Clel.      . 
M'Clel.&You. 
Mac.  &  G. 

Macq.  H.L.C 

Madd.  .  . 
M.  &  G.  . 
M.  &  P.     . 


Keble. 

Lord  Kenyon's  Re- 

])orts. 

Law  Journal  Reports, 
New  Series  from 
1831. 

Do.  — Old  Series,  1822 
-18:J1. 

The  Law  Reports  (from 
IHOo)  — House  of 
Lords  Cases. 

Do.  —  Scotch  Appeals. 

Do.  —  Privy  Council. 

Do.  —  Chancery  Ap- 
peals. 

Do.  —  Equity  Cases. 

Do.  —  Queen's  Bencli. 

Do.  —  Common  Pleas. 

Do.  —  Exchequer. 

Do.  —  Crown  CasesRe- 
served. 

Do.  —  Probate  and  Di- 
vorce. 

Do.  —  Admiralty  and 
Ecclesiastical. 

TheLaw  Rejiorts  (from 
1875)  —  House  of 
Ivords  and  Privy 
Council  Cases. 

Do.  —  Chancery  Divis- 
ion and  Appeals 
therefrom. 

Do.  —  Queen's  Bench 
Division  and  Ap- 
peals therefrom. 

Do.  — Common  Pleas 
Division  and  Ap- 
peals therefrom. 

Do.  —  Exchequer  Di- 
vision and  A])peal8 
therefrom. 

Law  Times  (New  Se- 
ries). 

Law  Times  (Old  Se- 
ries). 

Legal  Observer. 

Leonard. 

Levinz. 

Littleton's  Tenures. 

Lowiults,  Maxwell  & 
I'cdlock. 

IjMtw\clie. 

M'Clelaiid. 

M'Cleland  &  Younge. 

Ma(nMghten&  Gordon. 

Maeqneen's  House  of 
Lords  Cases  (Scotch 
Appeals). 

Maddoek. 

Manning  &  Granger. 

IMoore  &  I'ayne. 


Ixxiv      LIST   AND   EXPLANATION    OF    ABBREVIATIONS. 


M.  &  R.  . 
M.  &  S.  . 
M.  &  W.  . 
Marsh. .  . 
Mer.  .  . 
Mod.  .  . 
Mood.  .  . 
Moo.  &  M. 
Moo.  &  11. 

Moor    .     . 

Moo.     .     . 

Moo.  &  P. 

Moo.  &  S. 

Morrell     . 

Myl.  &  Cr. 
Myl.  &  K. 
N.  &  M.  . 
N.  &  P.     . 

New  R.      . 

P.  Wins.  . 

P.  &  D.  . 

Piiil.     .  . 

Plow.    .  . 

Pollexf.  . 


Q.  B. 


Raym.,  Ld. 
Raym.,  T. 

Roll.  Abr. 

Ros.  Ev.   . 

R.  S.  C.     . 

Riiss.    .     . 
Russ.  &  M. 
Rv.  &  Moo. 
Salk.     .     . 
Saund. 
Say.      .     . 

S(-h.  &  Lof. 

Scott,  N.  R 


.     Manning  &  Ryland. 

.     Maule  &  Selwyn. 

.     Meesoii  &  Welsby. 

.     Marsliall. 

.     Merivale. 

.     M)Jern  Reports. 

.     Moody. 

.     Moody  &  Miilkin. 

.     Moody  &  Robinson. 

f  Sir  F.  Moor's  Report? 
•\      (1(502). 

f  J.    B.    Moore   (1815- 
•1      1827). 
.     Moore  &  Payne. 
.     Moore  &  Scott. 

f  Morrell's   Bankruptcy 
■\      Reports. 
.     Mylne  &  Craig. 
.     Mylne  &  Keene. 
.     Nevile  &  Manning. 
.     Nevile  &  Perry. 

J  New  Reports  of  Bosan- 

■  \      quet  &  Puller. 
.     Peere  Williams. 

.     Perry  &  Davison. 
.     Phillips. 
.     Plowilen. 
.     PoUe.xfen. 

f  Qiieen'sBenchReports 

{       (Adolpluis   &  Kllis, 
•"       New    Series,  18:34- 

[      lS:u). 
.     Lord  Raymond. 
.     Sir  Thomas  Raymond. 

f  Lord    Rolle's   Abridg- 

■  \      tnent. 

.     Roscoe  on  Evidence, 
f  Rules  of  Supreme 

■  \      (^ourt. 
.     Russell. 

.     Russell  &  Mylne. 
.     Ryan  &  Moody. 
.     Salkeld. 
.     Sauixlers. 
.     Snyer. 

J  Sciioale  &  Lefroy 
•■j       (Irish). 
,  .     Scott's  New  Reports. 


Select  Ch.Cas 
Selw.  N.  P 


•{ 


Shep.  Touch. 

Show.  .     .     . 

Sid 

Sim.  .  .  . 
Sim.,  N.  S.  . 
Sim.  &  Stu.  . 
Skin.  .  .  . 
Sm.  &  Giff.  . 
Smith,  L.  C. . 
Stark.  .  .  . 
Stra.  .  .  . 
Sty.  .  .  . 
Sug.  Pow. 

Sug.  V.  &  P.  .  I 

Swans. .     .  . 

Sw.  &  Tr.  . 
Taunt. .     . 

T.  R.  .  .  . 
Turn.  &  Russ. 

Tyr.       .     .  . 

Tyr.  &  Gr.  . 

Vaugh.  .  . 
Vern.    . 

Ves.      .     .  . 

Vez.      .     .  . 

V.  &  B.  .  . 
Vin.  Abr. 

W.  R.  .     .  . 

Wightw.    .  . 

Wilk.Replev.  i 

Wilm.  .  .  . 
Wils.    .     .     . 

Wms.  Saund. 


Yelv.    . 
You.     . 

Y.  &C. 

Y.  &  C.  C 
Y.  &  J. 


Select  Cliancery  Cases, 

Selwyn's     Nisi     Prius 
(l;]th  ed.). 
f  She])pard's  Touch- 
\      stone).  . 

Shower. 

Siderfin. 

Simons. 

Simons,  New  Series. 

Simons  &  Stuart. 

Skinner. 

Smaie  &  Giffard. 

Smith's  Leading  Cases. 

Starkie. 

Strange. 

Style. 

Sugden  on  Powers. 
/  Sugden     on    Vendors 
\      and  Purchasers. 

Swanston. 

Swabey  &  Tristram, 

Taunton. 

Term  Reports. 

Turner  &  Russell. 

Tyrvvliitt. 

Tyrwhitt  &  Granger. 

Vaughan. 

Vernon. 

Vesey,  junior. 

Vesey,  senior. 

Vesey  &  Reames. 

Viner's  Abridgment. 

Weekly  Reporter. 

WightWick. 

Wilkinson  on  Re- 
pk'vm. 

Wihiiot's  Notes. 

Wilson. 

Saunder's  Reports, 
with   Notes  by  Ser- 
jeant Williams,  &c. 

Yelverton. 

Younge. 

Younuu'  &  Collyer, 
Exch. 

Do.  —  Chancery. 

Younge  &  Jervis. 


HISTORICAL    OUTLINE,   WITH   ABSTRACT    OF 
LEADING   PROPOSITIONS. 


It  is  proposed  in  this  Chapter  to  set  out  in  a  concise  and  read- 
able form  the  leading  propositions  of  the  law  of  England  affecting 
the  relation  of  landlord  and  tenant ;  but  it  may  perhaps  be  well  to 
begin  with  a  very  brief  historical  sketch  of  the  statute  law.  We 
may  omit  some  early  statutes,  chiefly  concerned  with  the  landlord's 
peculiar  remedy  for  recovery  of  rent  by  distress  {a),  and  proceed 
at  once  to  32  Hen.  8,  c.  34.  Most  of  the  statutes  which  will  call  for 
notice,  and  indeed  most  of  the  numerous  statutes  which  have  from 
time  to  time  dealt  specifically  with  the  subject,  ai'e  still  unrepealed. 

By  32  Hen.  8,  c.  34,  it  is  provided  that  grantees  of  reversions 
may  take  advantage  of  conditions  and  covenants  in  leases  ;  and  by 
another  act  of  even  date,  32  Hen.  8,  c.  37,  that  executors  may  sue 
or  distrain  for  rent  due  to  their  testator  in  his  lifetime. 

The  statute  1  &  2  Ph.  &  M.  c.  12,  enacts  that  cattle  seized  for 
rent  may  not  be  driven  out  of  the  hundred  where  they  are  taken, 
except  to  a  pound  overt  within  the  same  shire  not  above  three 
miles  distant. 

The  effect  of  the  Statute  of  Frauds  was  to  enact  that  leases  for 
more  than  three  years,  and  all  agreements  for  leases,  however 
short,  must  be  in  writing. 

It  was  not  until  1689  that  distress  ceased  to  be  merely  a  pledge 
in  the  hands  of  the  landlord.  An  act  passed  in  that  year  provides 
that  goods  distrained  for  rent  may  be  sold  unless  the  tenant  shall 
within  five  days  "  replevy"  them,  that  is,  proceed  in  due  course  of 
law,  and  in  the  peculiar  manner  appropriate  to  such  procedure,  to 
prove  that  the  procedure  was  wrongful. 

At  common  law  an  assignment  of  a  reversion  was  not  good 
against  a  tenant  unless  tlie  tenant  "attorned  to"  or  recognized 
his  new  landlord.     An  act  of  Anne  did  away  with  the  necessity 

(a)  51  Hen.  3,  stat.  4 ;  62  Hen.  3,  stat.  4;  3  Edw.  1,  c.  IG ;  3  Edw.  1,  c.  17. 


Ixxvi  HISTORICAL  OUTLINE. 

for  attornment,  but  provides  that  the  new  landlord  cannot  take 
advantage  of  uou-paN  ment  of  rent,  without  having  given  notice  of 
the  assignment  of  the  reversion  to  the  tenant. 

Another  act  of  Anne,  8  Ann.  c.  14,  is  of  great  importance.  It 
provides  that  no  goods  lua^'  be  taken  in  execution  without  the  ex- 
ecution creditor  paying  the  landlord  up  to  one  3ear's  arrears  of 
rent;  and  that  a  distress  may  be  made  at  any  time  within  six 
months  after  the  termination  of  a  lease.  A  further  provision  of  the 
same  statute  —  that  landlords  might  follow  goods  fraudulently  re- 
moved to  avoid  a  distress  —  was  not  long  afterwards  superseded 
by  a  more  extensive  provision  to  the  same  effect. 

In  the  reign  of  Geoi'ge  the  Second  it  was  enacted  that  tenants 
holding  over  after  a  landlord's  notice  might  be  sued  for  double  the 
yearly  value  of  the  premises,  and  in  order  to  remedy  inconveniences 
happening  "  by  reason  of  the  many  niceties  that  attend  the  re- 
entries at  common  law,"  that  landlords  entitled  by  law  to  re-enter 
might  re-enter  in  case  of  half  year's  rent  being  in  arrear  and  no 
sufficient  distress  being  found  on  the  premises,  the  statute  i)rovid- 
ing  at  the  same  time  that  on  the  tenant  paying  all  arrears  of  rent 
the  proceedings  should  cease.  These  latter  provisions  were  super- 
seded by  enactments  to  the  same  effect  in  the  Common  Law  Pro- 
cedure Act  of  1852. 

The  statute  11  Geo.  2,  c.  19,  is  a  long  and  important  one.  It 
extends  to  thirty  the  five  days  which  were  allowed  by  the  statute 
of  Anne  for  following  goods  fraudulently  removed  to  avoid  dis- 
tress, confers  upon  the  landlord  power  to  break  open  places  of 
concealment  anywhere,  and  visits  with  heavy  penalties  persons  in 
collusion  with  the  tenant.  It  benefits  both  landlord  and  tenant 
alike  by  allowing  a  distress  to  be  impounded  on  the  demised  prem- 
ises. It  provides  for  the  recovery  by  a  landlord  of  compensation 
for  "use  and  occu[)ation  "  although  the  contract  of  tenancy  be 
written,  so  long  as  it  is  not  by  deed  —  thus  obviating  the  nonsuits 
which  might  otherwise  arise.  It  allows  landlords  to  recover  de- 
serted premises  ])eforo  justices  of  the  peace  in  cases  wlierc  one 
year's  n^nt  is  in  arrear  and  no  sufliciont  distress  is  found  on  the 
premises,  and  to  recover  double  rent  from  tenants  holding  over 
after  their  own  notice  to  quit.  This  also  is  the  statute  which  first 
provided  for  "apportionment"  of  rent  in  the  case  of  a  landlord, 
being  himself  tenant  for  life,  dying  between  two  rent  days;  the 
rule  of  th('  common  law  having  liecn  that  in  such  a  case  the  exec- 
utors of  the  landlord  could  recover  nothing. 


HISTORICAL   OUTLINE.  Ixxvil 

The  act  56  Geo.  3,  c.  50,  provides  that  sheriffs  may  not  carry 
off  straw  or  other  agricultural  produce  iu  cases  where  the  tenant 
has  covenanted  with  the  landlord  to  consume  such  produce  on  his 
farm  ;  and  the  act  5.7  Geo.  3,  c.  93,  fixes  a  limit  to  the  expenses 
of  a  distress  where  tlie  sum  due  does  not  exceed  20^ 

By  1  Geo.  4,  c.  87,  it  was  first  enacted  that  tenants  holding 
under  a  contract  in  writing,  and  wrongfully  holding  over,  might 
be  compelled  iu  a  summary  way  to  give  security  for  the  costs  of 
an  ejectment  and  might  be  ejected.  This  provision  was  super- 
seded by  a  very  similar  one  of  the  Common  Law  Procedure  Act, 
1852. 

By  1  &  2  Vict.  c.  74,  provision  is  made  for  the  recovery  before 
justices  of  the  peace  of  small  premises  wrongfullv  held  over ;  the 
statute  applying  only  to  tenancies  at  will,  or  for  not  more  than 
seven  years,  or  at  a  rent  of  not  more  than  201.  a  year. 

In  1845  it  was  enacted,  in  effect,  that  leases  for  more  than 
three  years  must  be  b\-  deed,  and  a  concise  statutory  form  of  lease 
was  provided.  In  this  form,  the  proviso  for  re-entry  applies  to 
breaches  of  covenant  generally. 

Although  it  had  been  laid  down  in  Eboes  v.  Mawe,  in  1803, 
that  the  exceptions  gradually  introduced  into  the  doctrine  of  irre- 
movability of  fixtures  did  not  extend  to  agriculture,  it  was  not  till 
1851  that  the  agricultural  tenant  obtained  relief.  An  act  passed 
in  that  year  gives  to  this  class  of  tenant  the  right  of  removing  fix- 
tures elected  with  the  written  consent  of  the  landlord,  tliis  right 
being  subject  to  an  option  of  purchase  by  the  landlord.  The  same 
statute  provides  for  the  prolongation  till  the  end  of  the  current 
year  of  the  term  of  a  tenant  determined  by  the  death  of  a  landlord 
who  was  himself  only  a  tenant  for  life,  the  prolongation  being 
given  in  lieu  of  the  common  law  right  to  the  growing  crops  and 
other  "emblements." 

The  Common  Law  Procedure  Act,  1852,  re-enacted  in  substance 
the  provisions  of  4  Geo.  2,  c.  28,  and  1  Geo.  4,  c.  87,  as  to  re- 
covery of  premises  in  case  of  non-payment  of  rent  and  in  case  of 
holding  over.  The  County  Courts  had  not  originally  jurisdiction 
in  ejectment,  but  the  County  Court  Act,  1856,  adopts  with  little 
variation  the  provisions  of  the  Common  Law  Procedure  Act  above 
referred  to. 

The  act  22  &  23  Vict.  c.  35,  provided  for  the  relief  of  a  tenant 
against  forfeiture  for  non-insurance,  for  the  relief  of  the  executors  of 
a  tenant,  having  assets,  against  certain  personal  liabilities,  and  for 


lxx\'iii  HISTOKICAL  OUTLINE. 

the  preservatiou  of  the  right  of  re-entry  in  case  of  a  severance  of 
the  reversion.  The  act  23  &  24  Vict.  c.  38,  enacts  that  one  waiver 
of  a  breach  of  covenant  shall  not  operate  as  a  general  waiver. 

In  1870  a  comprehensive  "Apportionment  Act"  was  passed,  pro- 
viding for  the  apportionment  of  rent  between  the  heirs  and  executors 
of  a  landlord ;  but  occasion  was  not  taken  to  repeal  the  many  pre- 
vious acts  in  pari  materid  or  any  of  them. 

In  1871  the  goods  of  lodgers,  which  at  common  law  are  liable 
to  be  seized  for  rent  due  to  a  superior  landlord,  were  first  rendered 
exempt  from  such  distress,  and  a  similar  protection  was  extended 
in  1872  to  railway'  rolling  stock. 

The  Agricultural  Holdings  Act,  1875,  which  applied  where  ap- 
plicable unless  it  had  been  excluded  in  writing  by  the  landlord  or 
tenant,  extended  the  notice  to  quit,  which  was  requisite  in  the  case 
of  an  implied  tenancy  from  year  to  year,  from  half  a  year  to  twelve 
months  ;  gave  to  agricultural  tenants  a  primd  facie  jsroperty  in 
fixtures  ;  and  allowed  such  tenants  compensation  for  certain  im- 
provements therein  specified.  The  statute  was  applicable  only  to 
such  holdings  of  tAvo  acres  or  more,  as  were  either  wholly  agricul- 
tural or  wholly  pastoral.  Statistics  show  that  the  operation  of  the 
statute  was  excluded  by  landlords  taking  advantage  of  its  permis- 
sive clauses  in  the  vast  mtijority  of  cases,  and  that  from  a  variety 
of  causes  it  was  unpopular  with  the  vast  majority  of  agricultural 
tenants.  It  is  repealed  by  the  Agricultural  Holdings  Act,  1883, 
but  prospectively  only,  so  that,  where  not  excluded  by  wiating,  it 
still  applies  to  tenancies  current  or  created  between  the  14th  Feb- 
ruary, 1876,  and  the  31st  December,  1883. 

It  would  not  be  worth  while  to  notice  the  Settled  Estates  Act, 
1877,  were  it  not  that,  in  sect.  4G,  it  limits  the  application  of  the 
proviso  for  re-entry  to  cases  of  .non-payment  of  rent,  whereas  both 
the  corresponding  section  of  the  Settled  Estates  Act,  1856,  and 
(as  we  have  seen)  the  form  provided  by  the  Legislature  in  1845 
had  applied  such  proviso  to  the  breach  of  covenants  generally. 

The  Ground  Game  Act,  1880,  for  the  first  time  in  the  history  of 
the  subject,  interferes  with  the  liberty  which  landlord  and  tenant 
have  at  common  law  to  make  what  contracts  they  please.  Where 
the  contract  of  tenancy  was  silent,  game  was  always  the  property 
of  the  tenant  b}-  virtue  of  his  property  in  the  land.  Landlords, 
however,  have  for  a  long  time  been  in  the  habit  of  "reserving" 
the  game  to  themselves  by  special  stipulation,  and  where  this  is 
the  case  the  tenant  is  punishable  upon  summary  conviction,  under 


HISTORICAL   OUTLINE.  Ixxix 

the  act  1  &  2  Will.  4,  c.  31^  for  takiug  the  game.  With  respect 
to  hares  and  rabbits,  the  Ground  Game  Act,  although  it  does  not 
interfere  with  existing  leases,  provides  that  such  reservations  shall 
in  future  only  have  the  effect  of  giving  the  landlord  a  "  concurrent 
right"  with  the  tenant  to  kill  and  take  them. 

The  Conveyancing  and  Law  of  Property  Act,  1881,  contains 
most  important  provisions  respecting  "relief  against  forfeiture  " 
of  leases  for  breach  of  covenant.  It  had  been  for  a  very  long  time 
the  practice  to  insert  in  the  lease  a  proviso  for  forfeiture  of  the 
lease  by  the  tenant,  and  re-possession  of  the  premises  by  the  land- 
lord, in  case  of  breach  by  the  tenant  of  any  of  his  covenants  what- 
ever. In  the  case  of  a  breach  of  a  covenant  to  pay  rent,  a  court 
of  equity  from  ver3'  early  times,  and,  by  the  Common  Law  Pro- 
cedure Act,  1860,  a  Court  of  I>aw,  would  interfere  to  prevent  the 
landlord  enforcing  this  proviso,  upon  the  tenant  paying  the  rent : 
and  in  the  case  of  a  breach  of  a  covenant  to  insure,  a  special  and 
conditional  power  to  relieve  against  the  forfeiture  had  been  created 
by  statute,  being  given  to  a  Court  of  P^quity  by  22  &  23  Vict.  c.  35, 
and  to  a  Court  of  Law  b}^  the  Common  Law  Procedure  Act,  1860. 
But  except  in  these  two  cases,  and  in  the  cases  of  accident  or  sur- 
prise, no  relief  could  be  given,  were  the  breach  ever  so  trivial,  or 
the  improved  value  of  the  demised  premises  accruing  to  the  land- 
lord b}'  insisting  on  the  forfeiture  ever  so  great.  The  Act  of  1881 
mitigates  this  hardship  on  the  tenant,  b}'  empowering  the  Chancery 
Division  of  the  High  Court  to  grant  relief  against  forfeiture  for 
breach  of  any  covenant  or  condition,  except  the  covenant  not  to 
part  with  the  premises  without  leave  of  the  landlord  and  the  cove- 
nant in  a  mining  lease  to  allow  inspection  of  books,  and  the  con- 
dition for  forfeiture  in  case  of  bankruptcy ;  and  this  enactment 
takes  effect,  not  only  notwithstanding  any  stipulation  to  the  con- 
trary, but  also  upon  leases  made  either  before  or  after  the  com- 
mencement of  the  act. 

The  Settled  Land  Act,  1882,  very  greatly  extends  the  powers  of 
tenants  for  life  b^'  authorizing  them  to  make  building  and  mining 
leases,  and  to  accept  surrenders  of  leases. 

The  Agricultural  Holdings  Act,  1883,  is  a  statute  of  the  highest 
importance  to  the  landlords  and  tenants  of  agricultural  or  pastoral 
holdings  or  market  gardens.  Modelled  to  a  very  great  extent  upon 
.the  Agricultural  Holdings  Act,  1875,  it  differs  from  that  act  in 
being  mainly  compulsory,  and  partly  retrospective.  The  outgoing 
tenant  acquires  a  right  to  compensation  for  certain  specified  im- 


Ixxx  ABSTRACT   OF   LEADING   PROPOSITIONS. 

provemeuts,  the  act  requiring,  howevw,  in  the  case  of  buildings 
and  other  improvements  of  an  expensive  character,  the  consent  of 
the  landlord  to  the  execution  of  them,  and  in  the  case  of  drainage, 
giving  the  landlord  power  to  execute  drainage  works  himself,  charg- 
ing the  tenant  with  the  cost.  The  tenant  also  acquires  a  property 
in  fixtures  and  buildings  subject  to  the  landlord's  power  to  acquire 
them  by  purchase.  The  notice  to  quit  in  the  case  of  an  implied 
tenanc}'  from  year  to  year,  which  is  a  half-j'ear's  notice  at  common 
law,  becomes  a  year's  notice.  Travelling  into  quite  a  distinct  sub- 
ject matter,  the  act  also  mitigates  the  hardships  of  the  law  of  dis- 
tress by  reducing  the  period  within  which  arrears  of  rent  may  be 
distrained  for  from  six  years  to  one,  by  exempting  from  distress 
agricultural  machiner}'^  and  live  stock  taken  in  for  breeding  or  feed- 
ing, by  limiting  the  charges  upon  a  distress,  by  extending  the  time 
within  which  a  distress  may  be  redeemed,  and  by  requiring  all  dis- 
tresses to  be  taken  b}'  certificated  bailiffs. 

Lastly,  the  Housing  of  the  Working  Classes  Act,  1885,  greatly 
infringes  a  hitherto  leading  rule  of  the  law  of  landlord  and  tenant 
by  the  provision  that  in  every  contract  for  letting  a  house  at  a  cer- 
tain low  rent  there  shall  be  implied  a  condition  that  the  house  is 
reasonably  fit  for  human  habitation.  It  is  noteworthy  that  in  the 
bill,  as  originally  presented  b}'  the  Government  to  the  House  of 
Lords  by  Lord  Salisbury,  this  clause  was  intended  to  be  of  uni- 
versal application. 

These,  then,  very  briefly,  are  the  principal  English  (b)  statutes 
affecting  the  relation  of  landlord  and  tenant.  A  short  collection 
of  the  leading  propositions  of  the  law  of  tlie  subject  is  now  sub- 
mitted. 

(b)  But  few  of  the  English  statutes  Landlord   and   Tenant.       The    Irish 

relate    also    to    Scotland    or  Ireland.  cotntnon  law,  on  tlie  other  liand,  is 

Tiie  following  are  exceptions  :  — The  identical  witli  the  Enj;lis]i,  and  the 

Kniblements  Act,  1851  (14  &  15  Vict.  Irish  statutes   very  numerous.     The 

(!. '2')),  and  the  Lo(l<,'ers'  Goods  Pro-  principal  Irish  statutes  are:  14  &  15 

tection  Act,   1871    (o4  &  35  Vict.  c.  Vict.   c.   57   (remedy  by  tenant  dis- 

70),  relate  to  Ireland,  while  the  Ap-  trained  on  b}-   superior  after  paying 

portionment  Act,  1870  (:);3  &  31  Vict.  rent   to   immediate    landlord);  2.3  & 

c.  35),  and  the  Railway  Hollinfr  Stock  24  Vict.  c.  154  (summary  ejectment, 

Protection  Act,  1872   (35  &  3(;  Vict.  prolongation  of  term  in  lieu  of  enible- 

('.   50),   relate    both    to   Ireland    and  ments,  distri'ss    for   one   year's    rent 

Scotland.     The   Scotch  common  law  onl}') ;  33  &  .")4  Vict.  c.  45  (legality 

of  the  subject  is  widely  different  from  of  tenant  right)  ;  and  44  &  45  Vict, 

the  English,  and  the  Scotch  statutes  c.  40, "  The  Land  Law  (Ireland)  Act, 

which  specifically  relate  to  the  sub-  1881."     /b'ee    Furlong's  Landlord  and . 

ject   are   very   few.       See    llunter'a  Tenant. 


DISABILITIES   OF    LANDLORD    OR   TENANT.  Ixxxi 


Definitions. 

Landlord  and  tenant.  —  The  relation  of  landlord  and  tenant  is  created 
by  the  landlord  allowing  the  tenant  to  enjoy  the  landlord's  house  or  land 
for  a  consideration  termed  rent,  recoverable  by  distress. 

Reversion.  —  Reversion  is  the  interest  remaining  in  the  landlord,  who 
is  therefore  frequently  termed  the  reversioner. 

Tenant  for  years.  —  A  man  is  a  tenant  for  years  where  the  landlord 
lets  land  or  tenements  to  him  for  a  term  of  certain  years,  agreed  upon 
between  the  landlord  and  the  tenant,  and  the  tenant  enters  by  force  of 
the  lease. 

Tenant  from  year  to  year.  —  A  tenant  from  year  to  year  is  one  who, 
by  a  contract  of  tenancy,  implied  from  entry  and  the  payment  of  rent 
with  reference  to  a  yearly  tenancy,  is  entitled  to  half  (e)  a  year's  notice 
to  quit,  expiring  at  that  period  of  the  year  at  which  his  tenancy  com- 
menced. 

See  Doe  v.  Coates,  7  T.  R.  85,  and  p.  219,  post. 

Tenant  at  ■will.  —  A  tenancy  at  will  takes  place  where  the  letting  is 
for  no  certain  term,  but  is  to  continue  for  the  joint  will  of  both  parties, 
and  no  longer. 

Tenant  by  sufferance.  —  A  tenant  by  sufferance  is  one  who  comes  in 
by  right  and  holds  over  without  right,  as  if  a  tenant  for  the  life  of 
another  continue  to  hold  after  the  death  of  him  for  whose  life  he  entered. 

See  Smith,  L.  &  T.  13,  16,  31. 

Lease.  —  Any  contract  of  tenancy  is  a  lease,  but  the  expression  "  lease  " 
is  commonly  restricted  to  a  contract  of  tenancy  for  yeai's  or  lives  by  deed. 

Disabilities  of  Landlords. 

Settled  estates,  &c.  —  Infants,  lunatics,  owners  of  settled  estates 
and  other  persons  under  disability  become  landlords  under  certain  statu- 
tory restrictions,  the  principal  restriction  being  that  owners  for  life  may 
bind  remaindei--men  by  leases  for  building  purposes  for  99  years,  for 
mining  purposes  for  60  years,  and  for  other  purposes  for  21  years  and  no 
longei",  and  that  those  who  represent  landlords  under  disability  make 
leases  under  the  supervision  of  the  Chancery  Division  of  the  High  Court 
of  Justice. 

Settled  Land  Act,  1882,  s.  6,  p.  7,  post. 

Ecclesiastical  corporations.  —  Ecclesiastical  corporations  may,  with 
the  consent  of  the  Ecclesiastical  Commissioners,  grant  building  leases  for 
not  more  than  99  years.     Parsons  may  let  glebe  for  not  more  than  14 

(c)  If  the  Agricultural  Holdings  Act  applies  (see  Ixviii.,  post)  the  notice 
is  a  year's  notice. 


Ixxxii  ABSTRACT    OF    LEADING   PROPOSITIONS. 

years  (or  20  years,  if  the  tenant  covenant  for  improvements),  with  the 
consent  of  bishop  and  patron. 

5  &  6  Vict.  c.  27,  p.  23,  post ;  21  &  22  Vict.  c.  57,  s.  2,  p.  24,  post. 

Municipal  corporations.  — IVIunicipal  corporations  may  not  let  lands 
for  more  than  31  years  without  tlie  consent  of  the  Treasury. 

Municipal  Corporations  Act,  1882,  s.  108,  p.  17,  post. 

Disabilities  of  Tenants. 

Spiritual  persons.  —  Spiritual  persons  may  not  take  leases  of  more 
than  80  acres  of  laud  without  the  consent  in  writing  of  the  bishop  of  the 
diocese. 

1  &  2  Vict.  c.  106,  s.  28,  p.  68,  post. 

Charity  trustees.  —  Trustees  for  charitable  uses  can  only  take  leases 
by  deed  made  12  months  before  the  deatlr  of  tlie  landlord. 

Mortmain  Acts,  p.  69,  post. 

Infants.  —  A  lease  to  an  infant  is  not  void,  but  only  voidable  on  his 
coming  of  age. 

Baylis  v.  Dyneley,  3  M.  &  S.  477,  and  p.  70,  post. 

Agreement  for  Lease  (d). 

Specific  performance.  —  An  agreement  for  a  lease  must  be  in  writing 
and  signed,  to  be  sued  upon  as  such ;  but  he  who  enters  and  pays,  or 
agrees  to  pay  rent  under  an  oral  agreement  for  a  lease,  or  otherwise  partly 
performs  the  agreement,  may  ol)tain  a  decree  for  a  lease. 

Stat.  Frauds,  s.  4,  p.  85,  post ;  Nunn  v.  Fabian,  L.  R.,  1  Ch.  3-5,  p.  100, 
post. 

Stamp.  —  The  stamp  upon  an  agreement  for  a  lease  not  exceeding  35 
years  is  the  same  as  the  stamp  upon  a  lease,  and  the  stamp  upon  a  lease 
made  in  conformity  with  an  agreement  duly  stamped  is  sixpence. 

Stamp  Act,  1870,  s.  90,  and  p.  94,  post. 

Title  of  landlord.  —  Under  an  agreement  for  a  lease  for  years,  the 
intended  tenant  may  nof^  call  for  the  title  of  the  intended  lessor,  whether 
the  premises  intended  to  be  leased  be  freehold  or  leasehold. 

Vendor  and  Purchaser  Act,  1874,8.  2,  p.  2, post;  Conveyancing  Xv.t, 
1881,  s.  13,  p.  2,  post. 

(rf)  As  to  the  position  of  a  person  agreement  for  a  lease,  see  Wnlsli  v. 
entering  and    paying  rent  under  an       Lonsdale,  21  Ch.  D.  9,  and  p.  80,  yws/. 


CONTllACTS,    EXPRESS    AND    IMPLIED.  IxxxiH 


Lease. 

Mode  of  making.  —  A  lease  for  three  years  or  less  may  be  written  or 
oral,  but  a  lease  for  more  than  three  years  must  be  by  deed,  otherwise  it 
is  void. 

Stat.  Frauds,  s.  1 ;  8  &  9  Vict.  c.  10(5,  s.  .3,  p.  127,  post. 

Entry  under  void.  —  He  who  enters  and  pays,  or  agrees  to  pay,  rent 
under  a  void  lease,  is  tenant  fioin  year  to  year  upon  such  terms  of  the 
void  lease  as  are  consistent  with  a  yearly  tenancy. 

Doe  V.  Bell,  2  Sm.  L.  C.  96,  and  p.  221,  post. 

Custom  of  country.  —  The  custom  of  the  country  is  incorporated  in 
every  lease  unless  expressly  excluded. 

Wigglesworth  ?'.  Dallison,  1  Sm.  L.  C.  598,  and  p.  753,  post. 

Discrepancy  of  lease  and  counterpart.  —  The  ordinary  rule  is,  that 
where  the  lease  and  the  counterpart  differ,  the  lease  j^revails,  but  this 
rule  does  not  apply  where  there  is  an  evident  mistake  in  the  lease. 

Burchell  v.  Clark,  L.  R.,  2  C.  P.  D.  88,  and  p.  129,  post. 

Implied  Contracts  of  Landlord. 

Quiet  enjoyment.  —  The  landlord  impliedly  contracts  with  the  tenant 
to  give  him  possession,  and  guarantees  the  tenant  against  eviction  by 
any  person  having  a  title  paramount  to  that  of  the  landlord,  and  against 
the  disturbance  which  would  be  occasioned  by  some  person  enforcing  a 
charge  which  the  landlord  ought  to  have  satisfied. 

See  Coe  v.  Clay,  5  Bing.  440 ;  Bandy  v.  Cartwright,  8  Ex.  913,  and 
p.  674,  post. 

Fitness  of  premises.  —  There  is  an  implied  contract  by  the  landlord 
of  a  furnished  house  that  it  is  tit  for  occupation  ;  but  with  respect  to  an 
unfurnished  house  (unless  it  be  let  at  a  certain  low  rent)  or  land  there  is 
no  such  implied  contract. 

Wilson  I'.  Finch  Hatton,  L.  R.,  2  Ex.  D.  336 ;  Hart  v.  Windsor,  12 
M.  &  W.  68,  and  p.  1,  post. 

Implied  Contracts  of  Tenant. 

To  pay  rent,  &c.  —  The  tenant  impliedly  contracts  with  the  landlord 
to  pay  rent,  not  to  cojnmit  or  permit  waste,  and  to  give  up  possession 
at  the  end  of  the  tenancy. 

See  11   Geo.  2,  c.  19,  s.  14;   Morrison  i'.  Chadwick,  7  C  B.  266; 
Henderson  r.  Squire,  L.  R.,  4  Q.  B.  1. 


Ixxxiv  ABSTEACT    OF   LEADING   PROPOSITIONS. 

Not  to  deny  title.  —  A  tenant  is  estopped  from  alleging  that  his 
landlord  had  no  title  at  the  period  of  the  demise;  but  he  is  not  estopped 
from  alleging  that  the  title  of  the  landlord  has  expired. 

Cooke  V.  Loxley,  5  T.  R.  4;  Delaney  v.  Fox,  2  C.  B.,  N.  S.  768,  and 
p.  214,  post. 

Express  Contracts  of  Landlord. 

Quiet  enjoyment. — The  express  contract  of  a  landlord  for  quiet 
enjoyment  as  usually  worded  is  less  than  the  implied  one  (which  it 
excludes),  and  does  not  guarantee  the  tenant  against  eviction  by  title 
paramount. 

See  Merrill  v.  Frame,  4  Taunt.  329,  and  p.  676,  post. 

Repair.  —  "\^liere  a  landlord  contracts  to  repair,  a  notice  by  the  tenant 
that  the  premises  need  repair  is  an  implied  condition  precedent  to  the 
right  of  action  on  such  contract.  i 

Makin  v.  Watkinson,  L.  R.,  6  Ex.  25,  and  p.  595,  post. 


Express  Contract  of  Tenant. 

To  pay  rent.  —  The  contract  for  rent  must  be  performed  in  all  events, 
and  notwithstanding  the  destruction  of  the  premises  by  fire  or  other 
cause,  whether  preventible  or  not. 

See  Belfour  v.  Weston,  1  T.  R.  310,  and  p.  408,  post. 

Insurance. —  The  contract  to  insure  is  broken  by  a  failure  to  insure 
for  any  time,  however  short,  and  the  breach  of  such  a  contract  is  a  con- 
tinuing breach. 

Doe  V.  Shewin,  3  Camp.  134;  Doe  v.  Gladwin,  6  Q.  B.  953. 

To  repair.  —  The  contract  to  repair  must  be  performed  in  all  events, 
notwithstanding  the  destruction  of  the  premises  by  fire  or  other  cause, 
whether  preventible  or  not. 

Bullock  V.  Dommit,  6  T.  R.  650,  and  p.  592,  post. 

Damages  for  non-repair.  —  The  damages  for  non-repair  are  measured 
by  the  injury  to  the  reversion. 

Mills  V.  East  London  Union,  L.  R.,  8  C.  P.  79,  and  p.  600,  post. 

Against  assignment.  —  Tlie  contract  not  to  assign  without  licence  is 
not  broken  by  an  assignment  by  operation  of  law. 

Slipper  V.  Tottenham,  &c,.  Rail.  Co.,  L.  R.,  4  Eq.  112,  and  p.  660,  post. 


DISTRESS   FOR   RENT.  IxxXY 

Not  to  do  acts  without  licence.  —  Where  there  is  a  contract  not  to 
assign  without  licence,  or  not  to  do  any  other  act  without  licence  of  the 
landlord,  such  licence,  if  given,  extends  only  to  the  single  assignment  or 
other  act  for  which  the  licence  is  required. 

22  &  23  Vict.  c.  35,  s.  1,  and  p.  657,  post. 

Rent. 

"Where  payable.  —  Rent  is  payable  on  the  demised  premises  where 
there  is  no  covenant  to  pay  it ;  but  in  the  case  of  a  covenant,  it  is  incum- 
bent on  the  tenant  to  seek  out  the  person  to  whom  it  is  payable. 

Haldane  r.  Johnson,  8  Ex.  689,  and  p.  397,  post. 

Deductions.  —  The  tenant  may  deduct  from  rent  any  payment  which 
he  is  obliged  to  make  in  order  to  protect  himself  from  a  disti-ess  by  a 
ground  landlord. 

See  Taylor  v.  Zamira,  6  Taunt.  524. 

Apportionment  in  respect  of  estate. — Rent  is  apportioned  in  re- 
spect of  estate  where  part  of  the  demised  premises  changes  hands,  e.g. 
where  the  tenant  surrenders  or  is  evicted  from  part,  or  where  there  is  a 
severance  of  the  reversion. 

In  respect  of  time.  —  All  rents  as  between  the  heirs  and  executors  of 
the  landlord  are  considered  as  growing  due  from  day  to  day,  and  are 
apportionable  in  respect  of  time  accordingly,  but  the  tenant  may  not  be 
resorted  to  for  an  apportioned  part. 

Apportionment  Act,  1870,  p.  405,  post. 

Satisfaction  by  execution  creditor.  —  As  against  an  execution 
creditor,  the  landlord  has  a  claim  for  1  year's  arrears  of  rent  if  the  ten- 
ancy be  for  a  year  or  more ;  and  if  the  tenancy  be  for  less  than  a  year, 
for  the  arrears  of  rent  accruing  during  4  terms  of  payment. 

8  Ann.  c.  14,  s.  1 ;  7  &  8  Vict.  c.  96,  s.  67,  p.  490,  post. 

Distress  for  Rent. 

A  distress  for  rent,  in  the  absence  of  express  agreement,  can  be  made 
on  the  demised  premises  only,  but  an  agreement  that  a  distress  may  be 
made  on  other  premises  than  those  demised  is  valid. 

Daniel  v.  Stepney,  L.  R.,  9  Ex.  185,  and  p.  412,  post. 

Subject-matters  of  distress.  — A  distress  for  rent  may  be  made  by 
or  on  behalf  of  the  landlord  upon  all  goods  and  animals,  whether  belong- 
ing to  the  tenant  or  not,  found  upon  the  demised  premises,  except  that  — 


Ixxxvi  ABSTRACT    OF   LEADING   PROPOSITIONS. 

(1)  Fixtures,  things  in  actual  use,  things  in  the  custody  of  the  law, 

things  perishable,  things  delivered  to  the  tenant  in  the  way  of 
.  his  trade,  animals  of  a  wild  nature,  the  goods  of  an  ambassador, 
and  gas-meters,  and  if  the  Agricultural  Holdings  Act  applies 
(see  Ixviii.,  infra),  hired  machinery,  and  live  stock  not  belonging 
to  the  tenant  which  is  on  the  premises  for  breeding  purposes, 
are  absolutely  privileged  from  distress. 

See  Simpson  v.  Hartopp,  1  Sm.  L.  C.  439,  and  p.  435,  post. 

(2)  The  goods  of  a  lodger,  and  railway  rolling  stock  not  belonging 

to  the  tenant,  are  absolutely  privileged  from  distress,  upon  the 
lodger  or  owner  complying  with  the  terms  of  the  Lodgers'  Goods 
Protection  Act,  1871,  and  Railway  Rolling  Stock  Protection 
Act,  1872. 

34  &  35  Vict.  c.  79,  p.  445,  post ;  35  &  36  Vict.  c.  50,  p.  447,  post. 

(3)  The  tools  of  the  tenant's  trade,  and  his  sheep  and  beasts  of  the 

plough,  and  if  the  Agricultural  Holdings  Act  applies  (see  Ixviii., 
infra),  live  stock  not  belonging  to  the  tenant  taken  in  to  be  fed 
at  a  fair  price  to  be  paid  by  the  owner  to  the  tenant,  are  condi- 
tionally privileged  from  distress  —  that  is,  the}'  are  privileged  if 
there  be  other  sufficient  distress  upon  the  premises,  and  not 
otherwise. 

See  51  Hen.  3,  stat.  4,  and  p.  449,  post. 

Fraudulent  removal.  —  If  anj'  tenant  fraudulently,  and  in  order  to 
avoid  a  distress,  remove  any  goods  or  chattels  from  the  demised  premises, 
the  landlord  may,  within  30  days,  seize  and  sell  them  wherever  found, 
except  in  the  hands  of  a  bond  fide  purchaser  for  value. 

11  Geo.  2,  c.  19,  s.  1,  p.  467,  post. 

Distress  after  tenancy.  —  A  distress  may  be  made  at  any  time  within 

G  months  after  determination  of  the  tenancy. 

8  Ann.  c.  14,  s.  6,  p.  453,  post. 

Amount  of  rent  recoverable.  —  A  distress  must  be  made  within  6 
years,  or  if  the  Agricultural  Holdings  Act  applie.s,  1  year  (see  Ixviii., 
infra),  after  the  rent  distrained  for  is  due  or  acknowledged  in  writing  to 
be  due. 

3  &  4  Will.  4,  c.  27,  s.  42,  p.  454,  post. 

Liability  for  bailiff.  —  The  landlord  is  liable  for  the  irregular  but  not 
for  the  wrongful  acts  of  his  bailiff  making  the  distress. 

Haseler  v.  Lemoyne,  5  C.  B  ,  N.  S.  530,  and  p.  459,  post. 


DISTRESS  FOR   RENT.  Ixxxvii 

Impounding  on  premises.  —  A  distress  may  be  impounded  on  tlic 
premises  where  taken ;  and  when  it  is  so  impounded,  any  person  may 
enter  the  premises  in  order  to  view,  appraise  and  buy  it. 

11  Geo.  2,  c.  19,  s.  10,  and  p.  476,  post. 

Impounding  animals. — Persons  iiniiounding  animals  in  a  pound 
must  supply  them  with  food  and  water,  and  may  recover  the  exjiense 
from  the  owner.  In  default  of  supply  by  the  impounder,  any  person 
may  supply  food  and  water,  and  may  recover  the  expense  from  the 
owner,  or,  after  7  days'  impounding,  may  pay  himself  by  sale  of  the 
animal,  rendering  the  overplus  to  the  owner. 

12  &  13  Vict.  c.  92,  s.  5;   17  &  18  Vict.  c.  60,  p.  473,  post. 

Retainer  of  distress  as  pledge.  —  The  landlord  may,  if  he  pleases, 
retain  the  distress  as  a  pledge  until  the  rent  be  paid,  or  be  proved  not  to 
have  been  due  by  action  of  replevin.  For  5  days,  or  if  the  Agricultural 
Holdings  Act  applies,  and  the  tenant  so  require  in  writing,  15  days  (see 
Ixviii.,  infra),  after  seizure,  but  no  longer,  the  tenant  has  an  absolute 
right  to  treat  the  distress  as  a  pledge,  and  proceed  to  recover  it  by  action 
of  replevin.  After  the  5  or  15  days,  the  tenant  has  a  conditional  right 
to  replevy,  exercisable  at  any  time  before  an  actual  sale. 

See  2  W.  &  M.  scss.  1,  c.  5;  Jacob  v.  King,  5  Taunt.  451. 

Sale  of  distress.  —  Unless  the  tenant  replevy,  the  landlord,  at  any 
time  after  5  days,  or  if  the  Agricultural  Holdings  Act  applies,  and  the 
tenant  so  require  in  writing,  15  days  (see  Ixviii.,  infra),  from  the  seizure, 
may  sell  the  distress  to  satisfy  the  rent  and  expenses ;  but  he  must  first 
give  notice  in  writing  to  the  tenant,  and  cause  the  distress  to  be  appraised. 
He  is  not  bound  to  sell. 

2  W.  &  M.  sess.  1,  c.  5;  Philpot  v.  Lehain,  35  L.  T.  855,  and  p.  479, 
post. 

Expenses  of  distress.  —  Where  the  distress  is  for  not  more  than  20^., 
a  scale  of  expenses  is  limited  by  statute.  If  the  Agricultural  Holdings 
Act  applies  (see  Ixviii.,  infra),  and  the  disti'ess  be  for  more  than  20^.,  a 
scale  of  expenses  is  limited  by  that  act.  In  other  cases,  there  is  no  limit 
to  the  expenses,  except  that  they  must  be  reasonable. 

See  57  Geo.  3,  c.  93,  s.  1,  and  p.  482,  post. 

±(emedies  for  illegal  distress.  —  In  the  case  of  an  illegal  distress, 
e.g.  where  no  rent  is  due,  or  where  goods  privileged  from  distress  are 
seized,  the  tenant  may  rescue  the  goods  before  impounding,  or  obtain 
restitution  at  any  time  before  sale  by  replevin,  or,  at  his  option,  he  may 
sue  for  damages.  If  no  rent  be  due,  and  the  distress  be  sold,  he  recovers 
double  the  value. 

See  2  W.  &  M.  sess.  1,  c.  5,  and  p.  499,  post. 


Ixxxviii        ABSTRACT    OF   LEADING   PROPOSITIONS. 

Remedies  for  irregular  distress.  —  In  the  case  of  an  irregular  dis- 
tress, e.g.  where  the  distress  is  sold  without  notice,  or  not  for  the  best 
price,  the  tenant  may  recover  full  satisfaction  for  the  special  damage 
sustained,  and  no  more. 

11  Geo.  2,  c.  19,  s.  19 ;  Lucas  v.  Tarleton,  3  H.  &  N.  116. 

Remedy  for  excessive  distress.  —  In  the  case  of  an  excessive  dis- 
tress, the  tenant  may  recover  such  damages  as  a  jury  may  find  to  be  the 
value  of  the  goods  seized,  less  the  rent  due.  He  is  entitled  to  at  least 
nominal  damages. 

See  Chandler  v.  Doulton,  34  L.  J.,  Ex.  89,  and  p.  524,  post. 


Determinatiox  of  Tenancy. 

Modes  of  determination.  —  The  principal  modes  in  which  a  tenancy 
is  determined  are  notice  to  quit,  surrender,  and  forfeiture. 

Notice  to  quit.  —  A  tenancy  from  year  to  year  is,  in  the  absence  of 
an  agreement  otherwise,  determinable  by  half  a  year's  notice  to  quit, 
.expiring  at  the  end  of  some  current  year  of  the  tenancy.  If  the  Agri- 
cultural Holdings  Act  applies  [see  Ixviii.,  infni],  the  notice  is  a  year's 
notice. 

The  notice  to  quit  need  not  be  in  writing,  but  it  must  be  binding  on 
the  noticor,  and  the  noticee  must  have  reason  to  believe  it  so  to  be. 

The  notice  to  quit  need  not  be  delivered  to  the  tenant  personally.  It 
is  sufficient  to  deliver  it  to  a  person  on  the  premises  whose  duty  it  would 
be  to  deliver  it  to  the  tenant. 

Doe  I'.  Crick,  5  Esp.  196;  Jones  v.  Phipps,  L.  R.,  3  Q.  B.  667;  Tan- 
ham  V.  Nicholson,  L.  R.,  5  H.  L.  561. 

Option  to  determine.  —  If  a  terminable  lease  be  granted  without 
.saying  who  is  to  have  the  option  of  determining  it,  such  option  is  with 
the  tenant,  and  not  with  the  landlord. 

But  where  a  lea.se  provides  that  it  shall  become  void  upon  the  lessee 
breaking  any  of  the  covenants  contained  therein,  it  is  at  the  option  of 
the  lessor,  not  of  the  lessee,  whether  the  lease  shall  or  shall  not  be 
determined. 

Dann  v.  Spurrier,  3  B.  &  P.  399 ;  Doe  ?'.  Bancks,  4  B.  &  A.  401. 

Surrender.  —  Rveiy  express  surrender  nnist  be  by  writing,  and  every 
express  surrender  of  a  more  than  3  years'  term  nmst  be  by  deed. 

See  8  &  9  Vict.  c.  lOG,  s.  3,  p.  296,  post. 

A  surrender  may  be  implied  from  anything  wliich  amounts  to  an 
agreement  by  the  tenant  to  abandon  and  by  the  landlord  to  resume  the 


DETERMINATION   OF   TENANCY.  Ixxxix 

premises,  e.g.  by  the  delivery  of  keys,  by  the  entering  into  a  new  contract 
of  tenancy,  or  by  the  landlord  accepting  a  new  tenant. 

See  Phene'  v.  Popplewell,  12  C.  B.,  N.  S.  3^4,  p.  Z02,  post. 

Forfeiture.  —  A  forfeiture  is  incurred  ipso  facto  by  breach  of  a  condi- 
tion in  a  lease,  but  not  by  a  breach  of  covenant,  unless  the  lease  contain 
a  proviso  for  re-entry  applicable  to  the  breach. 

If  the  landlord  has  a  right  to  re-enter  for  non-payment  of  rent  (but  not 
otherwise),  he  may  re-enter  without  formal  demand  of  rent,  on  proving 
that  half  a  year's  rent  is  in  arrear,  and  that  no  sufficient  distress  be  found 
on  the  premises. 

See  C.  L.  P.  Act,  1852,  s.  210. 

Waiver  of  forfeiture.  —  If  the  landlord  at  anytime,  after  notice  of 
breach  of  covenant  committed,  acknowledges  the  continuance  of  the 
tenancy,  e.g.  if  he  distrain  or  sue  for  rent  due  after  the  forfeiture,  he 
waives  the  forfeiture  and  loses  his  right  to  re-enter. 

See  Ward  v.  Day,  5  B.  &  S.  364,  and  p.  323,  post. 

Continuing  breach.  —  Some  covenants,  e.g.  the  covenant  to  insure, 
are  of  such  a  nature  that  a  breach  of  them  is  continuing,  so  that  the 
effect  of  a  waiver  is  practically  nil. 

See  Doe  v.  Gladwin,  6  Q.  B.  953. 

Restriction  of  waiver.  —  A  waiver  does  not  extend  to  any  breach  of 
covenant  other  than  that  to  which  it  specially  relates. 

23  &  24  Vict.  c.  38,  s.  6,  p.  326,  post. 

Relief  against  forfeiture.  —  Relief  against  forfeiture  for  non-payment 
of  rent  can  be  obtained  at  any  time  within  6  months  after  execution 
executed  upon  payment  of  all  arrears  of  rent  and  full  costs. 

.  See  C.  L.  P.  Act,  1852,  s.  210,  p.  331,  post. 

Relief  against  forfeiture  for  any  breach  of  covenant  or  condition  ex- 
cept the  covenant  against  assignment  or  subletting  without  licence,  or,  in 
a  mining  lease,  to  permit  inspection  of  books,  or  for  forfeiture  in  case  of 
bankruptcy,  may  be  obtained  in  the  High  Court  by  the  tenant,  either  in 
the  landlord's  action,  if  any,  to  eject  him,  or  in  a  separate  action  brought 
by  liimself. 

Conveyancing  Act,  1881,  s.  14,  p.  328. 


XC  ABSTRACT   OF   LEADING   PROPOSITIONS. 


Rights  of  Parties  ox  Determination  of  Tenancy. 

Delivery  of  possession.  —  The  tenant  must  deliver  up  complete  pos- 
session of  the  premises,  and  is  answerable  for  the  holding  over  of  a  sub- 
tenant.    Encroachments  on  a  waste  are  for  the  benefit  of  the  landlord. 

Henderson  v.  Squire,  L.  R.,  4  Q.  B.  170,  and  p.  1^0,  post ;  Wliitmore 
V.  Humphries,  L.  R.,  7  C.  P.  1,  and  p.  742,  post. 

Rightful  holding  over.  —  If  a  tenant  for  years  hold  over,  and  pays  or 
agrees  to  pay  rent,  he  may  become  a  tenant  from  year  to  year  upon  such 
terms  of  his  lease  as  are  consistent  with  a  yearly  tenancy,  and  it  is  a 
question  for  the  jury  whether  he  becomes  such  a  tenant  or  not. 

See  Hyatt  v.  Griffiths,  17  Q.  B.  505,  and  p.  744,  post. 

"Wrongful  holding  over.  —  If  a  tenant  for  years  wilfully  hold  over 
after  written  demand  of  possession,  tlie  landlord  may  sue  him  for  damages 
at  the  rate  of  double  the  yearly  value  of  the  premises  held  over  so  long 
as  held  over. 

4  Geo.  2,  c.  28,  s.  1,  and  p.  745,  post. 

Holding  over  after  own  notice  to  quit.  —  If  any  tenant  hold  over 
after  his  own  notice  to  quit,  he  becomes  bound  to  pay  double  rent  so 
long  as  lie  holds  over,  recoverable  in  the  same  manner  as  the  single  rent. 

11  Geo.  2,  c.  19,  s.  18,  p.  748,  post. 

Partial  occupation.  — Where  an  existing  custom  for  the  tenant  of  a 
farm  to  retain  possession  after  the  end  of  his  tenancy  is  proved  as  a  fact, 
such  tenant  has  a  right  to  retain  possession  accordingly,  unless  he  hold 
under  a  contract  of  tenancy  inconsistent  with  the  custom. 

Compensation  for  improvements.  —  Wliere  an  existing  custom  for 
the  outgoing  tenant  of  a  farm  to  be  paid  compensation  for  improvements 
is  proved  as  a  fact,  such  tenant  has  a  right  to  compensation  in  accordance 
with  such  custom  unless  he  hold  under  a  contract  of  tenancy  inconsistent 
therewith.  Valuations  between  an  outgoing  and  incoming  tenant  are  a 
matter  of  convenience  only,  and  if  there  be  no  incoming  tenant,  the  land- 
lord is  liable  to  the  outgoing  tenant  under  tlie  custom. 

See  Favicll  v.  Gaskoin,  7  Ex.  273,  and  p.  753,  post. 

Application  of  Agricultural  Holding.s  Act,  1883. —The  Agricul- 
tural Holdings  Act,  1H.S:5,  aj)pli('s  to  all  holdings,  li()W(!ver  small,  either 
wholly  agricultural  or  wholly  pastoral,  or  partly  agricultural  and  partly 
pastoral,  or  wholly  or  partly  cultivated  as  m.arket  gardens,  held  under  a 
landlord  for  a  term  of  years,  or  for  lives,  or  for  lives  and  years,  or  from 
year  to  year  by  a  tenant  holding  no  employment  under  such  landlord. 

Agricultural  Holdings  Act,  1883,  ss.  51  and  01. 


EIGHTS    OF   PARTIES   AT    END   OF   TENANCY.  XCl 

In  cases  where  the  Agricultural  Holdings  Act,  1883,  applies,  the  tenant, 
on  quitting  his  holding  on  the  determination  of  his  tenancy,  is  entitled 
to  compensation  for  boning,  chalking,  clay-burning,  claying,  liming,  and 
marling,  and  for  the  application  of  purchased  manure,  and  consumption 
on  the  holding  by  cattle,  sheep,  and  pigs,  of  cake  or  other  feeding  stuffs 
not  produced  on  the  holding.  He  is  also  entitled  to  compensation  for 
buildings  and  other  permanent  improvements  if  executed  with  the  written 
consent  of  his  landlord,  and  for  drainage  if  executed  after  notice  to  a 
landlord  refusing  to  execute  it  himself. 

Agricultural  Holdings  Act,  188:3,  p.  774. 

Prolongation  of  term.  —  The  tenant  of  a  farm  at  rack  rent,  in  any 
case  where  the  tenancy  determines  by  the  cesser  of  the  estate  of  a  land- 
lord entitled  for  his  life,  or  for  other  uncertain  interest,  may  continue  to 
hold  the  farm  till  the  end  of  the  then  current  year  of  the  tenancy. 

14  &  15  Vict.  c.  25,  s.  1,  and  p.  760,  post. 

Fixtures.  —  The  primary  rule  is  that  all  things  attached  by  the  tenant 
to  the  demised  premises  become  the  property  of  the  landlord,  and  are 
not  removable  by  the  tenant  at  any  time  or  under  any  circumstances ; 
but  the  exceptions  to  this  rule  abrogate  it  in  respect  to  ti'ade  fixtures, 
domestic  fixtures,  and  agricultural  fixtures  in  a  varying  degree. 

Trade  fixtures.  —  Domestic  fixtures.  —  Trade  fixtures,  e.r/.  engines 
for  working  collieries,  and  conservatories,  and  domestic  fixtures,  e.g. 
ornamental  chinmey-pieces,  but  not  conservatories,  may  be  removed  by 
the  tenant  during  the  tenancy,  provided  that  the  removal  can  be  effected 
without  doing  substantial  injury  to  the  freehold. 

See  Lawton  v.  Lavvton,  3  Atk.  13,  and  p.  626,  post;  Buckland  v. 
Butterfield,  2  B.  &  B.  54,  and  p.  629,  pos^ 

Agricultural  fixtures.  —  Agricultural  fixtures  erected  by  the  tenant 
before  January  1st,  1884,  with  the  written  consent  of  the  landlord  be- 
come the  property  of  the  tenant,  and  removable  by  the  tenant  if  the 
tenant  shall  have  given  one  month's  notice  in  writing  of  his  intention  to 
remove,  and  the  landlord  shall  not  have  exercised  an  option  to  purchase 
them. 

14  &  15  Vict.  c.  25,  s.  3,  and  p.  632,  post. 

If  the  Agricultural  Holdings  Act  applies  (see  Ixviii.,  supra),  any  engine, 
machinery,  fencing,  or  building  (except  a  building  for  which  compensa- 
tion is  payable),  erected  by  the  tenant  on  or  after  the  1st  January,  1884, 
becomes  the  property  of  the  tenant  and  removable  by  him  before  or 
within  a  reasonable  time  after  the  termination  of  his  tenancy,  subject 
to  the  tenant  having  discharged  all  his  obligations  to  the  landlord,  doing 
no  avoidable  damage,  repairing  all  unavoidable  damage,  giving  notice 


XCii  ABSTRACT   OF   LEADING  PROPOSITIONS. 

of  intention  to  remove,  and   subject   also  to  the   landlord's   option   of 
pui-chase. 

Agricultural  Holdings  Act,  1883,  s.  34,  and  p.  634,  post. 

Removal  of  fixtures.  —  The  right  to  remove  non-agricultural  fixtures 
can  be  exercised  only  during  the  term  or  during  such  period  as  the  tenant 
holds  over  with  the  consent  of  the  landlord. 

See  Lyde  v.  Russell,  1  B.  &  Ad.  334,  and  p.  643,  post. 

Assignment. 

Mode  of  assignment.  —  Every  contract  for  assignment  must  be  in 
writing,  and  every  assignment  must  be  by  deed. 

Stat.  Frauds,  s.  4 ;  8  &  9  Vict.  c.  106. 

What  covenants  pass  to  assignee.  —  The  assignee  may  sue  or  be 
sued  upon  all  covenants  which  concern  the  premises  demised,  e.g.  on  a 
covenant  to  repair,  whether  the  assignor  may  have  covenanted  for  his 
assigns  or  not. 

See  Spencer's  case,  1  Sm.  L.  C.  CO,  and  p.  lQ2,post. 

Assignment  of  Reversion. 

Notice  to  tenant.  —  Before  suing  for  rent,  the  assignee  of  the  rever- 
sion must  give  notice  to  the  tenant  of  the  assignment  to  him,  but  he 
may  avail  himself  of  a  condition  for  re-entry  on  breach  of  covenants 
other  than  the  covenant  to  pay  rent  without  any  such  notice. 

4  Ann.  c.  16,  s.  10 ;  Scaltock  v.  Harston,  L.  R.,  1  C.  P.  Div.  106. 

Both  the  assignee  of  part  of  the  reversion  in  the  premises  and  the 
assignee  of  the  reversion  of  part  of  the  premises  may  sue  and  be  sued  on 
the  covenants  in  respect  of  the  part  assigned  or  apportioned  to  him. 

See  Stevenson  v.  Lambard,  2  East,  375;  22  &  23  Vict.  c.  35,  s.  3. 

Assignment  of  Term. 

Right  to  assign. —  Every  tenant,  except  a  tenant  by  sufferance,  may 
assign  or  sublet,  unless  expressly  restrained  by  the  contract  of  tenancy 
from  doing  so. 

See  Church  t;.  Brown,  15  Ves.  258. 

Sublease.  —  A  subl(!ase  for  the  whole  term,  or  for  a  period  beyond  it, 
is  an  assignment,  and  puts  the;  subU',nant  in  the  place  of  the  tenant. 

See  Beardman  v.  Wilson,  L.  R.,  4  C.  P.  57,  and  p.  258,  post. 


ASSIGNMENT   OF   TERM.  XClll 

Liability  of  lessee  and  assignee.  —  A  lessee  assigning  remains  liable 
on  his  covenants,  but  an  assignee  may  assign  over  to  a  pauper.  By  such 
assignment  the  assignee  frees  himself  from'  all  liability  to  the  lessor,  but 
his  liability  to  the  assignor  continues. 

See  Thursby  v.  Plant,  1  Wms.  Saund.  241 ;  Taylor  v.  Shum,  1  B.  & 
P.  21. 

Bankruptcy.  —  Upon  the  bankruptcy  of  the  tenant  the  tenant's  estate 
in  the  premises  is  assigned  by  law  to  his  trustee  in  bankruptcy,  who  may, 
within  three  months  after  his  appointment,  disclaim  that  estate,  with  leave 
of  the  Bankruptcy  Court,  if  the  tenant  has  sublet  or  assigned,  or  the  prop- 
erty leased  is  let  for,  and  is  worth,  20/.  a  year  or  more,  or  the  tenant's 
estate  is  not  being  summarily  administered,  or  if  the  landlord,  having 
notice  of  the  trustee's  intention  to  disclaim,  requires  the  matter  to  be 
brought  before  the  Court,  and  in  other  cases  without  any  such  leave. 

If  any  person  interested  requires  the  trustee  to  decide  whether  he  will 
disclaim  or  not,  and  he  does  not  decide  within  28  days,  the  option  to  dis- 
claim is  gone,  and  the  tenant's  estate  is  absolutely  vested  in  him  with  its 
burdens  and  benefits. 

If  no  disclaimer  is  executed,  the  trustee  is  personally  liable  on  the 
covenants  of  the  lease,  with  a  right  to  be  indemnified  out  of  the  assets 
of  the  bankrupt's  estate. 

The  disclaimer  determines  the  rights  and  liabilities  of  the  tenant,  and 
of  his  estate  in  the  lease,  as  from  the  date  of  the  disclaimer,  and  dis- 
chaj'ges  the  trustee  from  personal  liability  as  from  the  date  of  his  appoint- 
ment, but  does  not  affect  the  rights  or  liabilities  of  any  other  person. 

Bankruptcy  Act,  1883,  s.  55;  Bankruptcy  Rule,  132,  and  p.  211,  post. 

The  covenant  not  to  assign  without  licence  is  not  broken  by  an  assign- 
ment by  bankruptcy,  but  a  proviso  for  re-entry  on  the  tenant's  bank- 
ruptcy is  good. 

Doe  V.  Bevan,  3  M.  &  S.  353;  Roe  v.  Galliers,  2  T.  R.  133. 

Death.  —  The  tenant's  estate  is  personal  property,  and  passes  to  his 
personal  representatives.  In  Scotland  the  tenant's  interest  passes  to 
his  heirs. 

An  executor  cannot  waive  a  term,  although  it  be  worth  nothing ;  he 
must  either  renounce  the  executorship  in  toto  or  not  at  all. 

Rubery  v.  Stevens,  4  B.  &  Ad.  244. 

Personal  liability  of  executor.  —  Personal  representatives  are  pei-- 
sonally  liable  for  rent  only  up  to  the  value  of  the  premises. 

Personal  representatives  having  satisfied  all  existing  liabilities  on  a 
lease,  and  having  set  apart  a  sufficient  sum  to  answer  any  future  liqui- 
dated liability,  may  assign  the  lease  to  a  purchaser  and  distribute  assets. 


XCIV  ABSTRACT   OF   LEADING   PROPOSITIONS. 

Thereupon  the  personal  liability  of  tlie  personal  representatives  is  extin- 
guished, but  the  landlord  may  follow  the  assets  in  the  hands  of  the 
beneficiaries. 

22  &  23  Vict.  c.  35,  s.  27,  p.  290,  post. 

In  cases  to  which  the  above  two  paragraphs  are  not  applicable,  the 
personal  representatives  of  a  tenant  are  personally  liable  upon  his  cove- 
nants. 

See  Tremeere  v.  Morrison,  1  B.  N.  C.  8G,  p.  291,  post. 


Recovery  of  Premises  by  Landlord. 

Notice  before  proceeding  for  forfeiture.  —  A  right  of  re-entry  for 
breach  of  covenant  or  condition  (except  the  covenant  against  alienation, 
or  in  a  mining  lease  to  allow  inspection  of  books,  and  tlie  condition  for 
forfeiture  on  bankruptcy,  or  taking  the  lessee's  interest  in  execution)  is 
not  enforceable  unless  the  landlord  has  served  on  the  lessee  a  notice 
requiring  him  to  remedy  the  breach  complained  of,  and  the  lessee  has 
failed  to  remedy  the  bi-each  (if  remediable),  and  also  to  satisfy  the 
landlord  by  some  pecuniary  compensation. 

Conveyancing  Act,  1881,  s.  14,  p.  329,  post. 

Summary  judgment  against  tenant  holding  over.  — Tf  the  tenant's 
term  has  expired  or  been  duly  determined  by  a  notice  to  quit,  the  land- 
lord may,  in  an  action  for  the  recovery  of  the  premises,  obtain  final 
judgment  for  such  recovery  from  a  judge  in  chambers  on  affidavit  by 
himself  or  any  other  pci'son  who  can  swear  positively  to  tlie  facts,  verify- 
ing the  cause  of  action  and  swearing  that  there  is  no  defence  thereto. 

II.  S.  C,  1883,  Order  XIV.  p.  795. 

Mesne  profits.  —  Tlie  landlord  recovers  by  the  verdict  of  the  jury 
mesne  i)r()fits  from  the  date  of  the  determination  of  tlie  tenant's  interest 
down  to  the  date  of  the  verdict. 

C.  L.  P.  Act,  s.  214,  p.  791,  poM. 

Action  -where  premises  held  over. — Tf  neither  the  value  nor  tlie 
rent  of  the  premises  exceed  .'•O/.  a  y<'ar,  and  tlie  tenant  refu.se  to  deliver 
up  po.s.session  at  the  end  of  the  tenancy,  the  landlord  may  sue  the  tenant 
or  person  holding  through  him  in  th(;  County  Court  of  the  district  in 
■which  the  premises  lie;  and  the  judgt;  of  such  County  Court  may,  on 
proof  of  the  landlord's  title  and  other  matters,  order  possession  to  be 
given  up  to  tlie  landlord. 

County  Court  Act,  1850,  s.  50,  p.  811,  post. 


RECOVERY    OF    PREMISES    BY    LANDLORD.  XCV 

Action  ■where  rent  in  arrear.  —  Tf  neither  the  value  nor  the  rent  of 
the  preinises  exceed  50/.  ;i  year,  and  the  rent  be  in  arrear  for  one  half- 
year,  and  the  landlord  be  entitled  to  re-enter  for  non-payment  of  rent, 
the  landlord  of  any  premises  may,  without  any  formal  demand  for  re- 
entry, sue  the  tenant  in  the  County  Court  of  tlie  district  where  the 
premises  lie.  Thereupon,  unless  the  tenant  in  5  days  pay  the  rent,  on 
proof  of  no  sufficient  distress  being  found  on  the  premises  and  other 
matters,  the  judge  of  such  County  Court  will  order  possession  to  be  given 
up  to  the  landlord  in  not  less  than  4  weeks,  unless  the  rent  and  costs  be 
sooner  paid. 

County  Court  Act,  185G,  s.  52,  p.  816,  post. 

Action  in  county  court  in  ordinary  cases.  —  If  neither  the  value 
nor  the  rent  of  the  premises  exceed  20/.  a  year,  the  landlord  may,  upon 
any  Cause  of  forfeiture  whatsoever,  eject  the  tenant  by  action  brought  in 
the  County  Court  of  the  district  where  the  premises  lie.  But  if  the 
causes  of  action  be  either  non-payment  of  rent  or  holding  over,  the  land- 
lord must  follow  the  special  procedure  provided  for  such  causes  of  action. 

County  Court  Act,  1867,  s.  11,  p.  823. 

Recovery  before  justices  of  premises  held  over.  —  If  the  tenant 
occupy  at  will  or  for  a  term  of  not  more  than  7  years,  or  at  a  rent  of  not 
more  than  20/.  a  year,  and  refuse  to  quit  at  the  end  of  the  tenancy,  the 
landlord  may  summon  the  temint  before  two  justices  of  the  peace,  who, 
upon  proof  of  the  landlord's  claim  and  other  matters,  may  issue  a  war- 
rant to  the  constables  of  the  district  commanding  them  to  give  posses- 
sion within  a  period  not  less  than  21  nor  more  than  30  days  from  the 
date  of  the  warrant.  But  the  execution  of  the  warrant  may  be  stayed 
if  the  tenant  will  become  bound  with  sureties  to  sue  the  landlord  for 
ti'espass. 

I  &  2  Vict.  c.  74,  p.  829,  post. 

Recovery  before  justices  of  deserted  premises.  —  If  a  tenant  at 
rack  rent,  or  at  a  rent  of  thi'ee-fourths  of  the  yearly  value  of  the  demised 
premises,  be  in  arrear  for  one  half-year's  rent,  and  desert  the  demised 
premises,  and  leave  no  sufficient  distress  thereon,  two  or  more  justices  of 
the  peace  may  view  the  premises  at  the  request  of  the  landlord,  and  affix 
thereon  a  notice  stating  what  day,  at  the  distance  of  14  days  at  least, 
they  will  return  to  take  a  second  view.  If  upon  such  second  view  the 
tenant  do  not  pay  the  rent,  or  if  there  be  no  sufficient  distress  upon 
the  premises,  the  justices  may  put  the  landlord  into  possession,  and  the 
contract  of  tenancy  becomes  void. 

II  Geo.  2,  c.  19,  8.  16;  57  Geo.  3,  c.  52,  and  p.  835,  post. 


XC^a  ABSTRACT   OF   LEADING    PROPOSITIONS. 


Criminal  Law. 

Letting  infected  house. —  If  a  person  let  any  house  or  room  in  which 
any  person  has  been  suffering  from  an  infectious  disorder,  without  hav- 
ing such  house  or  room  disinfected,  he  is  liable  to  a  penalty  of  20/.,  and 
if  he  falsely  answer  any  question  of  an  intending  tenant  as  to  an 
infected  person  being,  or  having  been  within  6  months,  on  the  pi'emises, 
he  is  liable  to  a  penalty  of  20/.,  or  a  month's  imprisonment  with  hard 
labour. 

Public  Health  Act,  1875,  ss.  128,  129,  and  p.  841,  post. 

Larceny  by  tenant.  —  Any  tenant  stealing  any  fixture  is  guilty  of 
felony,  and  is  liable  to  two  years'  imprisonment,  with  whipping,  if  a 
male;  and,  if  the  value  of  the  fixture  exceed  5/.,  to  penal  servitude  for 
7  years. 

24  &  25  Vict.  c.  96,  s.  74,  and  p.  842,  post. 

Demolition  by  tenant.  —  Any  tenant  unlawfully  demolishing  any 
building  demised  to  him,  or  severing  any  fixture  from  the  freehold,  is 
guilty  of  a  misdemeanour. 

Z^  &  25  Vict.  c.  97,  s.  13,  and  p.  843,  post. 


THE     LAW 


LAI^DLORD    AND    TENATs^T. 


CHAPTER   I. 


BY  WHOM  TERMS  MAY  BE  GRANTED. 


SECT.  PAGE 

1.  Generally 1 

2.  Tenant  in  Fee 2 

8.  Tenant  in  Tail 3 

4.  Tenant  for  own  Life     ...  4 

5.  Tenant  for  the  Ijife  of  another  9 
ti.  Tenant  by  the  Curtesy,  &c.    .  10 

7.  Joint  Tenants  and  Tenants  in 

Common 10 

8.  Coparceners 12 

9.  Tenant  for  Years  ....  12 
10.  Tenant  for  less  than  Years  .  13 
n.  The  Crown lo 

12.  Corporations  generally      .     .  15 

13.  Municipal  Corporations     .     .  16 

14.  Ecclesiastical  Corporations    .  18 

(a)  Enabling   and    Disabling 
Acts 18 

(b)  Acts  of  Queen  Victoria  .  23 

15.  Universities  and  Colleges  .     .  30 

16.  Parish  Officers  and  Allotment 

Trustees 31 

17.  Trustees  of  Settled  Estates    .  32 


SECT.  PAOB 

18.  Trustees  of  Charities    ...  35 

19.  Infants 38 

20.  Guardians 39 

21.  Trustees  for  Infants      ...  41 

22.  Married  Women 42 

23.  Lunatics  and  Committees  .     .  45 

24.  Persons  under  Duress,  or  In- 

toxicated        46 

25.  Convicts 47 

26.  Trustees  of  Bankrupts  ...  48 

27.  Executors    and    Administra- 

tors        48 

28.  Mortgagor  and  Mortgagee     .  50 

(a)  Generally 50 

(b)  Under  Conveyancing  Act  56 

29.  Tenants  by  Elegit,  etc.      .     .  58 

30.  Receivers 58 

31.  Lords  of  Manors  and  Copy- 

holders       59 

32.  Agents  and  Bailiffs  ....  62 

(a)  Agent 62 

(b)  Bailiffs 67 


Sect.  1.  —  G-enerally. 

All  persons  who  are  not  under  any  legal  disability  may 
g-rant  leases  for  such  terms  as  are  not  inconsistent  with  the 
nature  and  quantity  of  the  estates  which  they  have :  but  if 
a  lease  be  made  for  a  longer  term  than  the  estate  of  the 
lessor  will  warrant,  it  will  generally  operate  as  a  valid  de- 
mise during  so  much  of  the  term  as  he  has  power  to  grant. 


*2  BY    WHOM    TERMS   GRANTED.  [Cu.  I.  S.  1. 

Thus,  if  a  tenant  for  life  demise  by  deed  for  a  long  term  (say 
ninety-nine  years),  it  will  operate  as  a  valid  lease  during  his 

life  (a). 
[*2]  *  Leases    by    estoppel.  —  If    a    person,    having    no 

estate  whatever  in  the  land,  demise  it  by  deed  to 
another,  who  enters  and  takes  possession  under  or  by  virtue 
of  such  demise,  the  law  will  not  allow  the  latter  to  deny  the 
title  of  the  person  from  whom  he  has  accepted  the  demise, 
and  a  tenanc}^  b}^  estoppel  and  also  a  reversion  in  fee  by 
estoppel  will  be  thereby  created  (6)  ;  ^  but  of  course  such 
demise  will  be  inoperative  as  against  the  real  owner,  except 
so  far  as  it  may  increase  the  difficulty  of  proving  his  title 
and  right  to  the  possession  of  the  land. 

Person  having  mere  right  of  entry  may  demise.  —  At  one 
time  it  was  necessary  that  the  party  granting  the  lease,  who 
is  called  the  lessor,  should  be  in  possession  of  the  lands  in- 
tended to  be  leased  or  in  receipt  of  the  rents  and  profits 

(a)  Bragg  v.  Wiseman,  Brownlow  &  W.  224 ;  Cuthbertson  v.  Irving,  4 
&  G.  22.  H.  &  N.  742 ;  6  Id.  135. 

(6)  Sturgeon   v.  Wingfield,  15  M. 

1  Tenancies  by  estoppel.  —  See  Stott  v.  Rutherford,  92  U.  S.  107.  The 
estoppel  is  mutual.  Tlie  lessee  cannot  dispute  the  lessor's  title,  neither  can 
the  lessor,  if  he  subsequently  acquire  one,  eject  the  lessee.  If  a  lessor  bring 
an  action  of  ejectment  against  the  lessee,  and  prove  the  existence  of  the  rela- 
tion of  landlord  and  tenant,  he  need  not  prove  his  title,  for  he  has  a  title  by 
estoppel  and  a  reversion  against  the  tenant.  He  must,  however,  prove  the 
termination  of  the  tenancy,  as  by  notice  to  quit,  for  during  the  tenancy 
the  tenant  has  a  title  to  the  possession  by  estoppel  against  his  lessor. 
Doe  d.  Ileatlicote  v.  Hughes,  3  P.  &  B.  (N.  B.)  308,  373.  If  a  lessor  demise 
without  liaving  any  title  and  subsequently  acquire  one,  it  will  enure  by 
estoppel  to  the  benefit  of  the  lessee.  McKenzie  v.  Lexington,  4  Dana  (Ky.) 
129.  Hence  a  grantee  under  deed  from  one  having  no  title  may  sue  in  tres- 
pass one  claiming,  under  his  grantor,  even  though  the  latter  have  sulisequently 
acquired  a  title.  Phelps  v.  Blount,  2  Dev.  L.  (N.  C.)  177.  Even  the  title  of 
the  lessee  of  a  tenant  at  will  is  good  by  estoppel  against  his  lessor  or  parties 
claiming  under  liim.  Hilbourn  v.  Fogg,  99  Mass.  11.  A  lessee  of  a  tenant  at 
will,  if  lie  occupy,  is  estopped  to  deny  his  lessor's  title.  Cook  v.  Cook,  28  Ala. 
000.  But  such  a  lessee,  if  he  have  not  occupied,  is  not  estopped.  Wright  r. 
Graves,  80  Ala.  410.  Termination  of  the  tenancy  removes  the  estoppel. 
Douglass  I'.  Geiler,  32  Kans.  490;  Turner  v.  Ferguson,  30  Tex.  605  ;  Heath  r. 
Williams,  25  Me.  200  ;  Rogers  v.  Joyce,  4  Id.  93.  It  is  only  the  existence  of 
the  lessor's  title,  or  that  he  had  one  at  the  commencement  of  the  tenancy, 
which  the  lessee  is  estopped  to  deny.  He  is  not  estopped  to  deny  that  the 
lessor's  title  has  terminated.  Lamson  v.  Clarkson,  113  Mass.  348;  O'Brien  r. 
Ball,  119  Id.  28. 

2 


Ch.  I.  S.  1.]  GENERALLY.  *2 

thereof;  for  if  he  had  a  mere  right  of  entry,  he  could  not 
grant  it  to  another  (c).!  But  by  8  &  9  Vict.  c.  106,  s.  6, 
not  only  contingent,  executory  and  future  interests,  and  pos- 
sibilities coupled  with  an  interest,  but  also  "  a  right  of  entry 
whether  immediate  or  future,  and  whether  vested  or  contin- 
gent, into  or  upon  any  tenements  or  hereditaments  in  Eng- 
land of  any  tenure,  may  be  disposed  of  by  deed."  This 
enactment  does  not  relate  to  a  right  to  re-possess  or  re-enter 
for  a  condition  broken,  but  only  to  an  original  right  where 
there  has  been  a  disseisin,  or  where  the  party  has  a  right  to 
recover  lands,  and  his  right  of  entry  and  nothing  but  that 
remains  (cZ). 

Lessor's  title.  —  A  lease  is,  both  in  contemplation  of  law 
and  in  fact,  a  conveyance  of  the  demised  premises  for  the 
term  therein  mentioned,  subject  to  the  rent,  covenants,  and 
conditions.^  It  usually  contains  a  very  qualified  and  re- 
stricted covenant  for  quiet  enjoyment,  such  as  any  person 
may  safely  enter  into  who  never  had  title  to  the  demised 
premises  (e).     By  the  Vendor  and  Purchaser  Act,  1874  (37 

(c)  32  Hen.  8,  c.  9,  ss.  2,  4  ;  Doe  d.  135;  Bennett  v.  Herring,  3  C.  B.,  N.  S. 

Williams  v.  Evans,  1  C.  B.  717.  370. 

{(1)  Hunt  V.  Bishop,  8  Exch.  675,  (e)  See  post,   Chap.  XVII.,  sect. 

680;    22    L.    J.,  Ex.    337;    Hunt    v.  8(6). 
Remnant,  9  Exch.  635 ;  23  L.  J.,  Ex. 

i  Right  of  entry,  -without  possession.  — A  lessee,  before  taking  posses- 
sion, can  give  a  valid  sub-lease.  Chung  Yow  v.  Hop  Chong,  11  Or.  220.  If 
lessor  grant  lease  to  one  lessee  to  commence  in  futuro,  and  afterward  grant 
lease  of  same  premises  to  third  party,  covering  the  same  term,  to  commence 
in  prcBsenti,  and  the  latter  enter  and  occupy  the  premises,  the  first  lessee,  when 
the  time  comes  for  commencement  of  his  term,  may  eject  the  second  lessee  or 
sue  the  lessor  for  damages.  Trull  v.  Granger,  8  N.  Y.  115;  Whitney  v.  Allaire, 
1  Id.  305,  311  {per  Gardiner,  J.). 

Leases  in  futuro.  —  Under  leases  to  commence  in  futuro,  lessee's  interest 
in  the  term  vests  presently,  but  his  right  to  tlie  possession  vests  in  futuro. 

The  right  of  possession  under  a  lease  which  does  not  stipulate  otherwise 
commences  immediately.  Witthaus  v.  Starin,  12  Daly  (N.  Y.  Com.  Pleas) 
226. 

Delivery.  —  A  lease  does  not  take  effect  until  delivery,  and  delivery  con- 
trols the  date.     Same. 

2  Nature  of  a  lease.  —There  is  a  material  distinction  between  the  common 
and  civil  law  theories  as  to  the  nature  of  a  lease.  "  The  common  law  regards 
such  a  lease  "  (a  lease  for  years)  "  as  the  grant  of  an  estate.  .  .  .  The  civil 
law,  on  the  other  hand,  regards  a  lease  for  years  as  a  mere  transfer  of  the 
use  and  enjoyment  of  the  property,"  &c.  Gray,  J.,  in  Viterbo  v.  Friedlander, 
120  U.  S.  707,  712,  713. 


*3  BY    WHOM   TERMS   GRANTED.  [Ch.  I.  S.  2. 

&  38  Vict.  c.  78)',  s.  2,  it  is  enacted  that  "  under  a  contract 
to  grant  or  assign  a  term  of  years,  whether  derived  or  to  be 
derived  out  of  a  freehold  or  leasehold  estate,  the  intended 
lessee  or  assign  shall  not  be  entitled  to  call  for  the  title  to 
the  freehold  ;  "  ^  and  by  the  Conveyancing  and  Law  of  Prop- 
erty Act,  1881  (44  &  45  Vict.  c.  41),  ss.  3  and  13,  there  are 
similar  enactments  as  to  the  title  to  a  leaseJiold  reversion  ; 
but  all  these  enactments  are  "  subject  to  any  stipulation  to 
the  contrary  in  the  contract." 


Sect.  2.  —  By  Tenants  in  Fee? 

Tenants  in  fee  may  make  leases  without  limit  or 

[*3]       restraint,  for  any  *  number  of   lives  or  years,  and 

upon  such  terms  and  conditions  as  they  may  tliink 

1  Giving  lease  "without  title ;  result  of  it.  —  The  words  "  demise," 
"  lease,"  "  let,"  contain  implied  covenant  for  quiet  enjoyment.  Stott  v. 
Rutherford,  92  U.  S.  107;  Cunningham  v.  Pattee,  99  ]\Iass.  248,  251  ;  Grannis 
V.  Delvin,  8  Cow.  (N.  Y.)  36.  Such  covenant  seems  to  be  implied  in  every 
lease  (of  less  than  a  freehold)  containing  words  of  demise.  Match  v.  Patchin, 
42  N.  Y.  167  ;  Mayor  of  N.  Y.  v.  Mabie,  3  Kern.  (N.  Y.)  160,  &c. 

The  result  of  giving  a  lease  without  title  would  be  that,  if  les.«cc  should  be 
evicted  by  one  liaving  the  title,  the  lessee  could  recover  damages  for  breach 
of  the  covenant  of  quiet  enjoyment  from  his  lessor.  Match  v.  I'atciiin,  supra  ; 
or  he  could  set  up  the  eviction  as  a  defence  to  a  suit  for  rent.  Fitchburg, 
&c.,  V.  Melven,  15  Mass.  268;  Smith  v.  Shepard,  15  Pick.  (Mass.)  147. 

'^  Fee  simple ;  definition.  —  Tenancy  in  fee  simple,  or  (as  it  is  sometimes 
termed)  tenancy  in  fee,  is  an  estate  to  one  and  Jiis  heirs  forever  witliout  con- 
ditions. It  is  the  highest  estate  known  to  the  law.  2  Blacks.  Com.  sees.  104, 
105;  4  Kent's  Com.  (l.'3th  ed.)  sec.  5.  All  fees,  including  various  determi- 
nable ones  (base,  conditional,  and  tail),  innii  endure  forever.  2  Blacks.  Com. 
109,  110;  4  Kent's  Com.  4.  But  a  fee  simnle  or  fee  (simply),  which  is  not 
determinable,  is  the  only  one  that  is  unqualified  (except  by  the  general  pro- 
visions of  the  law). 

The  word  "fee"  is  of  feudal  origin,  signifying  an  estate  held  under  a 
service;  2  Blacks.  Com.  sees.  104,  105.  In  this  country  tenures  are  essen- 
tially allodial.  4  Kent's  Com.  (l.'Jth  ed.)  sec.  487;  2  Cooley's  Blackstone, 
(•"'(I  ed.)  sec.  102,  note.  That  is,  lands  are  owned  as  tliey  were  prior  to  the 
feu<lal  system  without,  any  service.  2  Blacks.  Com.  104,  105;  3  Kent's  Com. 
498. 

It  is  still  held,  however,  that  the  sovereignty  (nation,  state,  or  common- 
weal tli)  is  the  source  of  the  title.  The  right  of  escheat  to  the  conmion- 
wcalth  and  of  eminent  domain  still  remains.  2  Cooley's  Blackstone  (3d 
ed.)  sec.  102,  note.  Several  states  have  exjjressly  enacted  that  tenures  shall 
be  allodial. 

The  term  "  fie  simple  "  is  the  technical  term  still  used  for  the  highest  estate, 


Cii.  I.  S.  2]  LEASE   BY   TENANTS  IN   FEE.  *3 

fit  C/)-^  ^  lease  of  lands  of  whicli  the  lessor  was  seized 
in  fee,  and  of  other  lands  of  which  he  was  seized  for  life 
(with  power  of  leasing)  at  one  entire  rent,  but  which  was 
not  well  executed  according  to  the  power,  was  held  to  be 

(/)  Com.  nig.  Estates  by  Grant  (G.  2). 

and  implies  an  absolute  and  perfect  title.  4  Kent's  Com.  487.  Although  it 
was  originally  used  to  distinguish  lands  held  under  feudal  tenures  from  those 
which  were  allodial.     2  Blacks.  Com.  104,  105,  lOG. 

The  limited  or  determinable  fees  are  divided  by  Blackstone  and  Kent  into 
base  or  qualified  fees,  conditional  fees,  and  fees  tail.  2  Blacks.  Com.  100, 
109 ;  4  Kent's  Com.  45. 

A  base  or  qualified  fee  is  one  having  a  qualification  annexed  to  it,  and  is 
determined  when  the  qualification  is  at  an  end.  2  Blacks.  Com.  109 ;  4  Kent's 
Com.  9. 

"  A  conditional  fee  at  the  common  law  was  a  fee  restrained  to  some  par- 
ticular heirs  exclusive  of  others."     2  Blacks.  Com.  110;  4  Kent's  Com.  11. 

A  fee  tail  was  a  conditional  fee  as  qualified  by  the  statute  de  donis.  13 
Edw.  1  C.  1.  This  statute  took  away  the  power  of  alienating  the  estate 
which  it  had  been  held  tenants  in  tail  might  do  after  issue  in  tail.  2  Blacks. 
Com.  Ill,  112,  113.  They,  however,  continued  to  alienate  them  by  means  of 
recoveries,  &c. 

Estates  tail  are  either  in  tail  general  or  tail  special.  Estates  in  tail  gen- 
eral are  where  they  are  limited  to  one  and  the  heirs  generally  of  his  body; 
and  in  tail  special  are  where  they  are  limited  to  certain  particular  heirs  to 
the  exclusion  of  others.  2  Blacks.  Com.  113.  An  estate  might  be  in  tail 
male  or  in  tail  female,  or  otherwise  limited.  But  these  distinctions,  so  far  as 
America  is  concerned,  are  largely  historic. 

1  Leases  by  tenants  in  fee;  examples.  —  A  tenant  in  fee  may  lease 
for  lives  (with  an  estate  at  will  thereafter),  Van  Rensselaer's  Heirs  r.  Penni- 
man,  6  Wend.  (X.  Y.)  569;  for  lives  simply,  Flagg  ;;.  Badger,  58  Me.  258; 
for  years  with  covenant  of  perpetual  renewal,  Crowe  v.  Wilson,  65  Md.479; 
for  years  witli  covenant  to  renew  simply,  Syms  i'.  Mayor  of  New  York,  105 
N.  Y.  158 ;  Rutgers  v.  Hunter,  6  Johns.  Cli.  215 ;  for  years  with  a  renewal 
option  or  privilege,  Austin  v.  Stevens,  38  Hun  (45  N.  Y.  Supreme  Ct.)  41 ; 
for  years  with  an  extension  option,  Sweetser  i\  McKenne.y,  65  Me.  225; 
Kramer  v.  Cook,  7  Gray,  550 ;  for  years  with  a  purchase  option,  70  Pa.  St. 
64;  for  years  with  a  purchase  covenant,  Stewart  v.  L.  I.  R.  R.  Co.,  102  N.  Y. 
601 ;  for  term  perpetual  determinable  only  at  will  of  lessor,  Folts  v.  Huntley, 
7  Wend.  210;  for  special  purpose  determinable  upon  happening  of  condition 
subsequent,  Horner  v.  Leeds,  25  N.  J.  L.  106,  115;  in  fee  simple,  absolute,  or 
determinable  reserving  rent  charge,  Saunders  v.  Hanes,  44  N.  Y.  353;  Watter- 
son  V.  Reynolds,  95  Pa.  St.  474;  for  years  simply,  Failing  r.  Schenck,  3  Hill 
(N.  Y.),344;  also  for  the  shorter  tenancies  (not  technically  termed  leases) 
as  from  3^ear  to  year,  Jackson  v.  Rogers,  2  Caines  Cas.  (N.  Y.)  314,  318; 
from  quarter  to  quarter,  Witt  v.  Mayor  of  N.  Y.,  6  Robertson  (N.  Y.  Superior 
Ct.)  441 ;  from  month  to  month,  O'Neil  v.  Wells,  2  R.  &  C.  (N.  S.)  205;  from 
week  to  week,  Macgregor  v.  Defoe,  14  Ont.  87,  92,  per  Wilson,  C.  J. ;  at  will 
merely,  Laxton  v.  Rosenberg,  11  Ont.  199,  207;  or  foi*a  quarter,  a  month,  a 
week,  or  any  other  determinate  period. 

6 


*3  BY   WHOM  TERMS   GRANTED.  [Cn.  I.  S.  3. 

good  after  the  death  of  the  lessor  for  the  lands  held  by  him 
in  fee,  though  not  for  the  other  lands  (^). 


Sect.  3.  —  By  Tenants  in  Tail. 

At  common  law.  —  By  the  common  law  a  tenant  in  tail 
could  make  no  lease  which  would  bind  his  issue  in  tail,  or 
remaindermen,  or  the  reversioner.^ 

Under  the  Fine  and  Recoveries  Abolition  Act,  1833.  —  By 
the  Act  for  the  Abolition  of  Fines  and  Recoveries  (3  &  4 
Will.  4,  c.  74),  s.  15,  "every  actual  teuant  in  tail"  [i.e., 
every  tenant  of  an  estate  tail  which  shall  not  have  been 
barred],  "whether  in  possession,  remainder,  contingency,  or 
otherwise,  shall  have  full  power  to  dispose  of,  for  an  estate  in 
fee  simple  absolute,  or  for  ant/  less  estate,  the  lands  entailed," 
as  against  the  issue  in  tail,  and  all  persons  whose  estates  are 
to  take  effect  after  the  determination  or  in  defeasance  of  the 
estate  tail.  But  by  sect.  21,  this  power  is  not  given  to 
expectant  heirs  or  issue  in  tail. 

A  lease  a  "  disposition  "  pro  tanto.  —  A  lease  for  any  num- 
ber of  years,  or  for  a  life  or  lives,  is  a  "  disposition  "  pro  tanto 
within  the  meaning  of  the  above  act.  But  by  sect.  34,  if 
there  be  a  protector  of  the  settlement,  his  consent  is  neces- 
sary to  make  the  lease  valid,  not  as  against  the  issue  in  tail, 
but  as  against  persons  Avhose  estates  are  to  take  effect  after 
the  determination  or  in  defeasance  of  the  estate  tail;  and  if 
the  tenant  in  tail  making  the  disposition  is  a  married  woman, 
the  concurrence  of  her  husband  is  necessary  to  give  effect 
to  the  same;  and  any  deed  which  may  be  executed  by  her 
for  effecting  the  disposition  must  be  acknowledged  by  her  be- 

(;/)  Doe  d.  Vnughan  v.  Mcylcr,  2  M.  &  S.  270. 

'  Tenancies  in  tail.  —  E.''.t.itos  tail  liavc  boon  abolished  or  have  become 
obKokU'  in  most  jjarts  of  tiie  United  States.  "In  others,  wlicrc  they  are 
Ktill  retained,  tiiey  may  be  barred  usually  by  a  sim]ile  deed  by  the  tenants." 
1  Washburn  on  Real  Property  (r.th  ed.)  p.  104;  4  Kent's  Com.  (13th  ed.) 
He,c.  14.  The  policy  of  the  country  is  opposed  to  restraints  on  alienation.  4 
Kent's  Com.  17.  Enfails  do,  iiowever,  under  modifications,  still  exist  in  the 
United  States.     4  Kent's  Com.  19. 

6 


Ch.  I.  S.  3.]  LEASE    BY   TENANTS    IN    TAIL.  ^4 

fore  a  judge,  or  before  a  perpetual  or  special  commissioner 
(A),  or  before  a  county  court  judge  (/). 

Inrolment,  when  necessary.  —  By  sect.  41,  "•  no  assurance  by 
which  any  disposition  of  lands  shall  be  effected  under  this 
act  by  a  tenant  in  tail  thereof  (except  a  lease  for  any  term 
not  exceeding  twenty-one  years^  to  commence  from  the  date  of 
such  lease,  or  from  any  time  not  exceeding  twelve  calendar 
months  from  the  date  of  such  lease,  where  a  rent  shall  be 
thereby  reserved,  which,  at  the  time  of  granting  such  lease, 
shall  be  a  rack  rent  or  not  less  than  five-sixth  parts  of  a  rack 
rent),  shall  have  any  operation  under  this  act  unless 
it  be  enrolled  in  his  Majesty's  High  Court  *  of  Chan-  [*4] 
eery  (Jc)  within  six  calendar  months  after  the  execu- 
tion thereof." 

It  is  to  be  observed  that  a  lease  for  less  than  twentj'^-one 
years  must  be  enrolled  pursuant  to  this  section,  if  the  rent 
reserved  does  not  amount  to  at  least  five-sixth  parts  of  a 
rack  rent,  or  if  the  term  is  not  to  commence  for  more  than 
one  year  from  the  date  thereof.  So  if  the  lease  is  for  a 
longer  term  than  twenty-one  years,  and  in  all  other  cases  not 
within  the  above  exception. 

A  lease  for  years  by  a  tenant  in  tail,  not  made  in  pursu- 
ance of  the  Fines  and  Recoveries  Act,  was  not  absolutely 
determined  by  his  death,  but  the  issue  in  tail  was  at  liberty 
either  to  affirm  or  avoid  it,  as  he  may  think  fit  (?)•  Accept- 
ance by  the  issue  in  tail  of  the  rent  (m),  or  bringing  an 
action  for  the  recovery  thereof,  or  an  action  of  waste,  were 
considered  such  acts  as  amounted  to  a  confirmation  of  the 
lease,  because  they  plainly  manifested  an  intent  to  continue 
the  lessee  in  possession  upon  the  terms  of  his  lease.  A  lease 
at  common  law  by  the  tenant  in  tail  differs  from  a  rent 
granted  by  such  tenant ;  for  the  last  is  void  by  the  death  of 
the  grantor:    whereas  the   former  is  only  voidable  by  the 


{h)  Sect.  40 ;  sect.  79,  as  amended  the  High   Court ;  Judicature  Act,  s. 

by  sect.  7  of  the  conveyancing  Act,  34. 

1882,  45  &  46  Vict.  c.  39.  (/)  Bac.  Abr.  tit.  Leases  (D.). 

(/)  County  Court  Act,  1856,  19  &  {m)  Doe  r?.  Southouse  y.  Jenkins,  5 

20  Vict.  c.  108,  s.  73.  Bing.  469;    Doe  d.   Phillips  v.   \\o\- 

(A)  Now  the  Chancery  Division  of  lings,  4  C.  B.  188. 


*5  BY   WHOM   TERMS    GRANTED.  [Ch.  I.  S.  4. 

issue  in  tail,  whose  acceptance  of  rent  amounts  to  a  confir- 
mation (?i). 

Settled  Land  Act.  —  The  power  of  tenants  in  tail  to  grant 
leases,  &c.,  pursuant  to  the  Fines  and  Recoveries  Act  was 
unaffected  by  the  Settled  Estates  Act,  1877  (40  &  41  Vict, 
c.  18),  but  the  Settled  Land  Act,  1882  (45  &  46  Vict.  c.  38, 
s.  38)  confers  upon  a  tenant  in  tail  the  same  powers  under 
that  act  as  that  act  confers  upon  a  tenant  for  life,  so  that 
leases  made  after  that  act  came  into  operation  \_t.e.,  after 
31st  December,  1882]  are  not  subject  to  the  operation  of  the 
Fines  and  Recoveries  Act,  but  may  be  made  in  all  ways  as 
a  lease  by  a  tenant  for  life. 

Leases  after  possibility  of  issue  extinct.  —  The  like  is  the 
case  with  a  tenant  in  tail  after  possibility  of  issue  extinct, 
that  is,  where  one  is  tenant  in  special  tail,  and  the  person 
from  whose  body  the  issue  was  to  spring  dies  without  issue, 
or,  having  issue,  that  issue  becomes  extinct  (o).  See  there- 
fore the  next  section. 


Sect.  4.  —  Lease  hy  Tenant,  for  Life. 

At  common  law  a  tenant  for  his  own  life  (not  having  any 
special  power  to  grant  leases)  can  make  no  leases  to  con- 
tinue longer  than  his  own  life  (^p).^  This  inconven- 
[*5]  ience  to  the  tenant  was  partiall}^  modified  *by  the 
right  to  "  emblements "  (^),  for  which  was  substi- 
tuted by  14  &  15  Vict.  c.  25,  s.  1,  the  right  of  the  lessee  of 
''  a  farm  or  lands,"  to  hold  until  the  expiration  of  the  year  in 
wliich  the  landlord  died.^ 

Special  powers  of  leasing.  —  The  settlements,  however, 
whether  by  deed  or  will,  under  which  a  tenant  for  life  holds 

(n)  Cruise's  Dij;.  tit.  II.  c.  2,  s.  8 ;  (o)  2  Blac.  Com.  124. 

Bro.    Abr.   tit.   Grant,    145;     2    Ld,  (/>)  Bac.    Abr.    tit.    Leases     (I.); 

Ilaym.  779  ;  Andrew  v.  Pearce,  1  New  Adams  v.  Gibney,  6  Bing.  G56. 

11.  158.  (v)  See  post,  Ciiap.  XX.  sect.  3. 

»  Hoa^land  v.  Criim,  113  111.  .305,  .309,  370  {per  Scott,  J.)  ;  King  v.  Foscue, 
91  N.  C.  116,  118  {]>er  Merrimon,  J.)  ;  Enriprbt  v.  ()'Lo<rhlen,  20  L.  H.  Ir.  159. 

■^  A  lessee  of  a  tenant  for  life  is  entitled  to  embienicnts  if  lease  is  termi- 
nated by  death  of  lessor.     King  »•.  Foscue,  91  N.  C.  110,  119. 


Ch.  I.  S.  4.]  LEASE   BY   TENANT   FOR   LIFE.  *5 

his  estate,  frequently  contain  "special  powers  of  leasing," 
enabling  the  tenant  for  life  to  make  leases  binding  after 
his  death,  for  a  limited  period,  upon  the  parties  in  remain- 
der. Where  these  powers  did  not  exist,  or  were  found  to 
be  insufficient,  they  were  in  many  cases  conferred  by  private 
Act  of  Parliament.  In  1856  these  private  acts  were  in  a 
great  measure  rendered  unnecessary  by  s.  32  of  the  general 
"Settled  Estates  Act,  1856,"  19  &  20  Vict.  c.  120,  whicli 
empowered  tenants  for  life  to  make  leases  for  21  years. 
The  Act  of  1856  was  repealed  but  in  great  part  re-enacted 
by  the  Settled  Estates  Act,  1877,  40  Viet.  c.  18,  s.  46,  of 
which  act  replaced  s.  32  of  the  act  of  1856,  in  terms  which, 
altliough  therj  were  entirely  superseded  (though  not  expressly 
repealed),  as  from  the  commencement  of  the  Settled  Land  Act, 
1882,  by  the  more  comprehensive  enactments  of  that  act 
presently  to  be  referred  to,  it  is  still  necessary  to  set  out 
here,  inasmuch  as  leases  actually  granted  by  tenants  for  life, 
&c.,  before  the  commencement  of  the  act  of  1882,  would  be 
at  any  rate  technically  invalid  unless  made  in  accordance 
with  such  terms. 

Settled  Estates  Act,  1877.  —  Leases  for  21  years.  —  The 
terms  of  s.  40  of  the  act  of  1877  were  as  follows:  —  "It 
shall  be  lawful  for  any  person  entitled  to  the  possession  or 
to  the  receipt  of  the  rents  and  profits  of  any  settled  estates 
for  an  estate  for  any  life,  or  for  a  term  of  years  determinable 
with  any  life  or  lives,  or  for  any  greater  estate,  either  in  his 
own  right  or  in  right  of  his  wife,  unless  the  settlement  sliall 
contain  an  express  declaration  that  it  shall  not  be  lawful  for 
such  person  to  make  such  demise,  and  also  for  any  person 
entitled  to  the  possession  or  to  the  receipt  of  the  rents  and 
profits  of  any  unsettled  estates  as  tenant  by  the  curtesy,  or  in 
dower,  or  in  right  of  a  wife  who  is  seised  in  fee,  witJiout  any 
application  to  the  court,  to  demise  the  same  or  any  part 
thereof,  except  the  principal  mansion-house  and  the  de- 
mesnes thereof  and  other  lands  usually  occupied  therewith, 
'from  time  to  time  for  any  term  not  exceeding  21  years,  to 
take  effect  in  possession  at  or  within  one  j^ear  next  after  the 
making  thereof ;  jDrovided,  that  every  such  demise  be  made 
by  deed,  and  the  best  rent  that  can  reasonably  be  obtained 

9 


*6  BY   WHOM  TERMS   GRANTED.  [Ch.  I.  S.  4. 

be  thereby  reserved,  without  any  fine  or  other  benefit  in  the 
nature  of  a  fine,  which  rent  shall  be  incident  to  the  imme- 
diate reversion ;  and  provided  that  such  demise  be  not  made 
without  impeachment  of  waste,  and  do  contain  a  covenant 
for  the  payment  of  the  rent  and  such  other  usual  and  proper 
covenants  as  the  lessor  shall  think  fit ;  and  also  a 
[*6]  condition  of  re-entry  on  *  non-payment  of  the  rent  for 
a  period  of  28  days  after  it  becomes  due,  or  for  some 
less  period  to  be  specified  in  that  behalf;  and  provided  a 
counterpart  of  every  deed  of  lease  be  executed  by  the  les- 
see "  (r). 

This  section  did  not  apply  to  a  case  where  trustees  had 
the  management  of  an  estate,  of  which  they  paid  the  net 
annual  rents  to  the  tenant  for  life  (^•).  In  such  a  case  the 
tenant  for  life  was  not  even  entitled  to  petition  under  the 
act  (0- 

Demise  against  remaindermen,  &c.  —  By  sect.  47,  every 
demise  authorized  by  the  last  preceding  section  was  made 
valid  against  the  person  granting  the  same,  and  all  other 
persons  entitled  to  estates  subsequent  to  the  estate  of  such 
person  under  or  b}^  virtue  of  the  same  settlement,  if  the 
estates  be  settled  (?/),  and  in  the  case  of  unsettled  estates 
against  the  wife  of  any  husband  granting  such  demise  of 
estates  to  which  he  was  entitled  in  right  of  such  wife,  and 
against  all  persons  claiming  through  or  under  the  wife  or 
husband  (as  the  case  might  be)  of  the  person  granting  the 
same. 

By  sect.  48,  the  execution  of  a  lease  by  the  lessor  "  shall 
be  deemed  sufficient  evidence  "  that  a  counterpart  of  such 
lease  has  been  duly  executed  by  the  lessee  as  required  by 
the  act. 

Concurrence  of  incumbrancers.  —  By  Sect.  54,  "for  the  pur- 
I)Oscs  of  lliis  act,  a  iicrson  shall  be  deemed  to  be  entitled  to 

(r)  The    only    material    alteration  (.s)  Taylor  »•.  Taylor,  L.  11.,  20  Eq. 

was  the  omission  of  the  direction  that  207  ;  44  L.  J.,  Ch.  727  ;  'Xl  L.  T.  8(»;^ 

the  condition  of  re-entry  should  apply  2.'3  VV.  R.  047.  per  .Tissel,  M.  U. 
to   non-observance    of   covenants,   as  (')  Id.,  I..  R.,  1  Ch.  1).  42(5. 

well  as  to  non-payment  of  rent.     And  («)  As  to  concurrence  in  an  ai)i)li- 

as  to  the  act  generally,  see  sect.  17,  cation  to  the  court  on  behalf  of  luna- 

po8t.  tics,  &c.,  see  sect.  49. 

10 


Ch.  I.  S.  4.]  LEASE   BY   TENANT   FOR   LIFE.  *7 

the  possession  or  to  the  receipt  of  the  rents  and  profits  of 
estates,  although  his  estate  may  be  charged  or  incumbered 
either  by  himself  or  by  tlie  settlor  or  otherwise  howsoever, 
to  any  extent;  but  the  estates  or  interests  of  the  parties 
entitled  to  any  such  charge  or  incumbrance  shall  not  be 
affected  by  the  acts  of  the  person  entitled  to  the  possession 
or  to  the  receipt  of  the  rents  and  profits  as  aforesaid,  unless 
they  shall  concur  therein." 

Leases  of  copyholds.  —  By  sect.  56,  "  nothing  in  this  act 
shall  authorize  the  granting  of  a  lease  of  any  cop^diold  or 
customary  hereditaments,  not  warranted  by  the  custom  of 
the  manor,  withovit  the  consent  of  the  lord,  nor  otherwise 
prejudice  or  affect  the  rights  of  an}^  lord  of  a  manor."  And 
by  sect.  9,  the  powers  of  leasing  included  powers  to  lords  of 
settled  manors  to  give  licences  to  their  copyhold  or  custo- 
mary tenants  to  grant  leases. 

By  sect.  57,  "  the  provisions  in  this  act  contained  respect- 
ing demises  to  be  made  without  application  to  the  court, 
shall  extend  only  to  settlements  made  after  the  \st  of  November^ 
1856  "  (x^. 

Settled  Land  Act.  —  The  Settled  Land  Act,  1882  (45  &  46 
Vict.  c.  88),  not  only  goes  far  beyond  the  Settled 
Estates  Act  in  the  powers  which  it  gives  to  *  a  ten-  [*7] 
ant  for  life,  but  is  retrospective,  —  that  is,  it  takes 
effect  whether  the  settlement  was  made  before  or  after  the 
commencement  of  the  act  (sect.  2)  and  is  compulsory, — 
that  is,  it  takes  effect  whether  the  settlor  expressed  a  Avish 
that  it  should  take  effect  or  not  (sect.  51). 

General  regulations  as  to  lease  by  tenant  for  life.  —  Sect.  6 
of  the  Settled  Land  Act,  1882,  is  as  follows :  — 

"  A  tenant  for  life  may  lease  the  settled  land,  or  any  part 
thereof,  or  any  easement,  right,  or  privilege  of  any  kind  over 
or  in  relation  to  the  same,  for  any  purpose  whatever,  whether 
involving  waste  or  not,  for  any  term  not  exceeding, 
(i.)  In  case  of  a  building  lease,  ninety-nine  years : 
(ii.)  In  case  of  a  mining  lease,  sixty  years : 
(iii.)  In  case  of  an}^  other  lease,  twenty-one  years." 

(a-)  Tliis  bein<:r  the  date  of  the  &  20  Vict.  e.  120),  the  4-tth  section  of 
original  Settled  Estates  Act,  185(3  (19       wliich  contained  a  similar  saving. 

11 


*7  BY  WHOM   TERMS    GRANTED.  [Cn.  I.  S.  4. 

And  by  sect.  7  "  (1)  every  lease  shall  be  by  deed,  and  be 
made  to  take  effect  in  possession  not  later  than  twelve 
months  after  its  date. 

"  (2)  Every  lease  shall  reserve  the  best  rent  that  can 
reasonably  be  obtained,  regard  being  had  to  any  fine  taken, 
and  to  any  money  laid  out,  or  to  be  laid  out,  for  the  benefit 
of  the  settled  land,  and  generally  to  the  circumstances  of  the 
case. 

"  (3)  Every  lease  shall  contain  a  covenant  by  the  lessee 
for  pa3'ment  of  the  rent,  and  a  condition  of  re-entry  on  the 
rent  not  being  paid  within  a  time  therein  specified  not  ex- 
ceeding thirty  days. 

"  (4)  A  counterpart  of  every  lease  shall  be  executed  by 
the  lessee  and  delivered  to  the  tenant  for  life ;  of  which 
execution  and  delivery  the  execution  of  the  lease  by  the 
tenant  for  life  shall  be  sufficient  evidence. 

"  (5)  A  statement  contained  in  a  lease,  or  in  an  indorse- 
ment thereon,  signed  by  the  tenant  for  life,  respecting  any 
matter  of  fact  or  of  calculation  under  this  act  in  relation 
to  the  lease,  shall,  in  favour  of  the  lessee  and  those  claiming 
under  liim,  be  sufficient  evidence  of  the  matter  stated." 

By  sect.  12,  the  power  of  leasing  under  the  act  extends  to 
the  making  of  a  lease  either  (1)  in  pursuance  of  a  contract 
for  lease  by  a  predecessor  in  title,  or  (2)  for  giving  effect  to 
a  covenant  of  renewal,  or  (3)  a  lease  for  confirming  a  pre- 
vious void  or  voidable  lease. 

Mansion-house.  —  By  sect.  15,  however,  the  "  principal 
mansion-house  on  any  settled  land,  and  the  demesnes  thereof, 
and  other  lands  usually  occupied  therewith"  may  not  be 
leased  without  the  consent  of  the  trustees  of  the  settlement, 
or  an  order  of  the  court,  i.e.,  by  sects.  2,  sub-sect.  9,  and  246 
of  the  act,  the  Chancery  Division  of  the  High  Court. 

Building  and  mining  leases.  —  Special  regulations  respect- 
ing building  and  mining  leases  are  provided  by  sects.  8-11, 
the  more  important  of  which  are,  that  in  the  case  of  a  build- 
ing lease,  "  a  peppercorn  rent,  or  a  nominal  or  other  rent 
less  than  the  rent  ultimately  payable,  may  be  made  pay- 
able for  the  first  live  years,  or  any  less  part  of  the  term  " 
(sect.  8,  sub-sect.  2),  that  in  tlie  case  of  a  mining  lease,  the 

12 


Ch.  I.  S.  4.]  LEASE    BY   TENANT   FOR    LIFE.  *8 

rent  may  vary  according  to  the  *  quantities  of  min-  [*8] 
eral  gotten  (sect.  9),  and  that,  in  the  case  of  either 
kind  of  lease,  the  court  may  authorize,  in  accordance  with 
the  proved  circumstances  of  the  district,  leases  "  for  any 
term,  or  in  perpetuity,  at  fee  farm  or  other  rents,  secured  by 
condition  of  re-entry  or  otherwise,  as  in  the  order  of  the 
court  expressed." 

Leases  under  express  po-wers. —  A  tenant  for  life,  with 
express  power  to  grant  leases  for  any  limited  term,  of 
building,  repairing,  or  mining  leases,  &c.,  subject  to  certain 
restrictions  and  conditions,  may  grant  any  such  lease  in 
accordance  with  the  power  (?/),  if  such  power  be  larger 
than  the  power  he  would  have  under  the  Settled  Land  Act ; 
but  if  such  power  be  more  limited  than  his  power  under  the 
act,  then  the  act  prevails,  and  enlarges  such  power  (2). 

Notice  to  trustees.  —  It  is  provided  by  sect.  45  of  the  Set- 
tled Land  Act,  1882,  as  amended  by  sect.  5  of  the  Settled 
Land  Act,  1884,  that  a  tenant  for  life,  when  intending  to 
make  a  lease,  &c.,  shall  give  one  month's  notice  (which  may 
be  general,  and  need  not  be  confined  to  any  particular  trans- 
action), to  the  trustees  of  his  settlement  of  such  intention ; 
but  it  is  provided  by  sub-sect.  3  of  sect.  45  of  the  act  of  1882, 
that  "  a  person  dealing  in  good  faith  with  the  tenant  for  life 
is  not  concerned  to  inquire  respecting  the  giving  of  any  such 
notice  as  is  required  by  the  section,"  and  no  leave  of  the 
court  is  necessary  to  enable  him  to  grant  any  such  lease. 
But  where  the  settlement  creates  no  such  power,  and  it  is 
wished  to  grant  a  lease  not  warranted  by  the  Settled  Land 
Act,  the  authority  of  the  court  must  be  obtained  pursuant  to 
the  provisions  of  that  act.  Sometimes  a  private  act  of  par- 
liament may  still  be  necessary. 

Confirmation  by  remainderman.  —  A  lease  by  a  tenant  for 
life,  except  as  authorized  by  the  Settled  Estates  Act,  or  by 
the  Settled  Land  Act,  or  by  some  express  powers  in  the  set- 
tlement or  will  from  which  he  derives  his  title,  is  absolutely 
void  against  a  remainderman,  and  cannot  be  confirmed  by 
such  remainderman's  acceptance  of  rent,  suffering  the  tenant 

(2/)  See  Chap.  V.,  sect.  19.  («)  Settled  Land  Act,  1882,  ss.  55-57. 

13 


*9  BY   WHOM   TERMS    GRANTED.  [Ch.  I.  S.  4. 

to  remain  in  possession  (a),  or  even  by  a  grant  of  the  free- 
hold treating  the  lease  as  valid  (6) ;  but  in  a  case  where 
the  remainderman  lay  by,  and  suffered  an  assignee  of  an 
invalid  lease  to  lay  out  money  in  re-building,  and  might  be 
presumed  to  have  had  notice  of  the  fact.  Lord  Hardwicke 
directed  a  new  lease,  with  proper  covena7its,  to  be  granted 
to  the  assignee  for  the  remainder  of  the  term  (c)  ; 
[*9]  and  subsequent  *  acceptance  of  rent,  or  other  ac- 
knowledgment of  tenancy,  may  be  evidence  of  a 
new  demise  from  year  to  year  by  the  remainderman  (cZ) ; 
the  lessee  being  a  mere  tenant  by  sufferance  in  the  inter- 
val (e).  It  was  also  held,  prior  to  the  Settled  Estate  Acts, 
that  the  lessee  was  not  estopped  from  showing  that  the 
estate  had  determined  by  the  death  of  the  lessor  (/) ;  but 
that  if  a  tenant  for  life,  seised  also  of  the  remainder  in  fee 
expectant  on  an  intervening  estate  tail  in  the  premises,  made 
a  lease,  the  demise,  though  defeated  by  his  death  as  to  his 
life  estate,  might  ultimately  take  effect  for  the  residue  of 
the  term  out  of  his  remainder  in  fee,  by  the  decease  of  the 
tenant  in  tail  without  issue,  and  without  his  having  acquired 
the  fee  by  a  proper  mode  of  assurance  Q/^ ;  that  if  a  tenant 
for  life  granted  a  lease  for  years,  and  then  surrendered  or 
forfeited  his  estate,  the  lease  would  remain  good  during  his 
life,  if  the  years  so  long  continued  (7i)  ;  and  that  a  lease 
executed  by  a  tenant  for  life,  in  which  the  reversioner,  who 

(a)  Doe    d.   Simpson    v.   Butcher,  83;  Roe  c?.. Jordan  r.  Ward,  1  II.  Blac. 

Doug.    50 ;     Jenkins     d.     Yates     v.  96 ;    Roe   d.   Brune   ;;.  Prideaux,   10 

Church,  Cowp.  482;    James   d.  Au-  East,  187;  Doe  d.  Collins  t-.  Weller, 

bray  i'.  Jenkins,  Bull.  N.  P.  9G;  Doe  7  T.  K.  478  ;  Doe  d.  Tucker  v.  Morse, 

d.  Martin  v.  Watts,  7  T.  K.  83;  2  Esp.  1  B.  &  Adol.  3(55;  Doe  d.  Pennington 

501  ;  Doe  d.  Collins  v.  Weller,  7  T.  v.  Taniere,  12  Q.  B.  998  ;  Cornish  v. 

R.  478 ;  Jones  d.  Cowper  v.  Verney,  Stubbs,  L.  11.,  6  C.  P.  334. 

Willes,  169.  (e)  Preston  v.  Love,  Noy,  120  ;  Roe 

(6)  See  Smith  v.  Widlake,  L.  R.,  3  d.  Jordan  v.  Ward,  1  H.  Blac.  96. 

C.  P.  D.  10;  47  L.  J.,  C.  P.  282;    C.  (/)  Brudnell   v.  Roberts,  2   Wils. 

A.,  26  W.  R.  52,  reversing  judgment  143;    Neave    v.  Moss,    1    Bing.   360; 

of  Cockburn,  C.  J.  Whittome  i'.  Lamb,  12  M.  &  W.  813; 

(c)  Stiles  V.  Cowper,  3   Atk.  692;  Weld  r.  Baxter,  11   Exch.  816;  1  H. 

compare  East  India  Co.  f.  Vincent,  2  &  N.  568. 

Atk.  83  ;  Jackson  v.  Cator,  5  Ves.  688  ;  (g)  Taylor  v.  Stibbert,  2  Ves.  jun. 

Dunn    V.  Spurrier,  7  V^s.  231,    235,  437.  442;  3  &  4  Will.  4,  c.  74,  s.  40. 

236.  (/i)  Sutton's   case,   12   Modd.  557, 

(rf)  Doe  d.  Martin  t-.  Watts,  2  T.  R.  558. 

14 


Cii.  I.  S.  5.]     LEASE  BY   TENANT   FOE,   LIFE   OF   ANOTHER.     *10 

was  then  under  age,  was  named  as  one  of  the  lessors,  but 
which  was  not  executed  by  him,  was  void  on  the  death  of 
the  tenant  for  life,  and  an  execution  of  it  by  the  reversioner 
afterwards  was  no  confirmation  so  as  to  bind  the  lessee,  for 
it  was  not  his  covenant  (i). 

Covenant  to  pay  for  improvements.  —  Prior  to  the  Settled 
Land  Act,  it  was  held  in  Oakley  v.  Monck  (ji')  that  a  re- 
mainderman was  not  bound  by  a  covenant  in  a  life  tenant's 
lease  to  pay  the  lessee,  a  nurseryman,  at  the  end  of  the  term 
for  trees  planted  during  the  term  (there  being  no  evidence 
that  there  was  a  continuing  tenancy  on  the  terms  of  the 
lease),  but  it  is  conceived  that  the  effect  of  the  Settled  Land 
Act  would  be  to  bind  a  remainderman  by  such  a  covenant 
in  the  same  manner  as  if  the  lease  had  been  made  by  him- 
self; and  further,  that  the  effect  of  that  act  is  to  bind  a 
remainderman  by  any  covenants  made  by  the  life-tenant  with 
a  lessee  acting  in  good  faith,  and  by  any  lease  omitting  any, 
however  usual,  covenants  with  a  lessee  so  acting  (^),  pro- 
vided only  that  s.  6  of  the  act  has  been  complied  with. 


Sect.  5.  —  Lease  hy  Tenant  for  Life  of  another. 

Where  a  person  holds  for  the  term  of  another's 
life,  he  is  called  *  tenant  pur  autre  vie ;  leases  made     [*10] 
by  him,  of  course,  determine  on  the  death  of  the  ces- 
tui que  vie,^  or  person  during  whose  life  he  holds  (Z),  or  in 
the  case  of  a  farm,  at  the  end  of  the  then  current  year  of  the 
tenancy  (w),  but  not  on  his  own  death  Qti)  ;  and  a  lease  by 

(0  Ludford  v.  Barber,  1  T.  R.  86.  (/)  Blake  v.  Foster,  8  T.  R.  487; 

(./)  L.  R.,  1  Ex.  159;  35  L.  J.,  Ex.  Roe  d.  Jackson  v.  Ramsbottoin,  3  M. 

87  ;  Ex.  Ch.  &  S.  516 ;  Fcniier  v.  Duplock,  2  Bing. 

(k)  See  ss.  20,  53,  54  of  the  act.  10;  Hill  i'.  Saunders,  Id.  112;  S.  C, 

As  to  binding  of  remainderman  by  in  error,  4  B.  &  C.  529 ;  Doe  d.  Strode 

contracts  for  leases,  see  s.  31  of  the  v.  Seaton,  2  C.   M.  &  R.   728;  Cole 

act ;  and  as   to  powers  to  agree  for  Ejec.  217. 

improvements      under     Agricultural  (?«)  14  &  15  Vict.  c.  25,  s.  1. 

Holdings  Act,  see  s.  42  of  that  act,  (n)  Com.  Dig.  tit.  Estates  (E.  1); 

post,  Appendix  A.  2  Blac.  Com.  136. 

1  Perry  v.  Aldrich,  13  N.  H.  343. 

15 


*10  BY  WHOM  TERMS   GRANTED.  [Ch.  I.  S.  7. 

him  may  be  made  to  commence  after  his  death  (o).  The 
cases  and  statutes  affecting  the  "lease  for  lives  "  are  consid- 
ered hereafter  (j^). 


Sect.  6.  —  By  Tenants  hy  the   Curtesy^  Tenants  in  Dower  or 

Jointure. 

Tenants  by  the  curtesy  or  in  dower  may  grant  leases  pur- 
suant to  the  Settled  Estates  Act,  in  like  manner  as  tenants 
for  life  (c[)^ 

Leases  granted  by  any  such  tenants,  not  ma^e  in  pursu- 
ance of  the  above  act,  become  absolutely  void  at  their 
death  (f)?  or,  if  the  holding  be  agricultural,  at  the  end  of 
the  then  current  year  of  the  tenancy  (s).  If  the  lessee  then 
holds  over  he  becomes  tenant  on  sufferance ;  but  a  new  ten- 
ancy at  will,  or  from  year  to  year,  may  be  created  with  the 
express  or  implied  assent  of  the  reversioner,  or  by  his  ac- 
ceptance of  subsequent  rent.  That,  however,  will  not  con- 
firm the  original  lease  for  the  term  therein  expressed  to  be 
granted  (i),  but  will  only  create  a  new  tenancy.  If  a  tenant 
in  dower  lease  for  years,  and  marry,  her  second  husband's 
executors  are  entitled  to  the  arrears  of  rent  due  at  his 
death  (u).^ 

Sect.  7.  —  By  Joint  Tenants  and  Tenants  in  Common. 

Joint  tenants  and  tenants  in  common  may,  according  to 
the  interest  they  have,  join  or  sever  in  making  leases  ;  ^  and 

(o)  Utty   Dale's    case,    Cro.    Eliz.  Miller  ;•.  Mnynwarinf^,  Cro.  Car.  .399. 

182.  (s)  14  &  15  Vict,  c'  25,  s.  1. 

(p)  Post,  Ch.  v.,  sect.  G  (c).  (0  Bac.    Abr.   tit.   Leases    (I.   1)  ; 

(9)  Ante,  Sect.  4.  Miller  v.  Maynwaring,  Cro.  Car.  399. 

(r)  Bac.  Abr.  tit.   Leases    (I.    1)  ;  («)  Anon.,  Moor,  ])1.  25. 

1  Seizin  of  a  wife  in  law  is  sufficient  in  this  country  to  entitle  her  husband 
to  a  tenancy  by  the  curtesy,  althouji;h  she  is  not  seized  in  fact.  Wass  v. 
Bucknani,  .38  Me.  .'558. 

■^  Lease  by  guardian  of  tenant  in  dow^er  is  terminated  by  her  death. 
Stockwcll  V.  Siir^ent,  'M  Vt.  Hi. 

•'  Rent  in  arrears  at  death  of  tenant  in  dower  who  lias  not  remarried,  goes 
to  her  executors  and  not  to  her  husband's  heirs.  2  Scribner  on  Dower  (2d  ed.) 
p.  781. 

*  Tiio  common  law  favored  joint  tenancies,  construing  titles  to  be  joint 
unless  otiierwisc  expressed.     Joint  tenancies  are  odious  in  America  on  account 

16 


Ch.  I.  S.  7.]  LEASES    BY   JOINT   TENANTS,    ETC.  *11 

such  leases  bind,  whether  made  to  commence  in  prrcsenti  or 
in  fiituro  (.r).  If  joint  tenants  join  in  a  lease,  there  is  l)ut 
one  lease,  and  the}^  all  make  but  one  lessor,  for  they  have  but 
one  freehold;  but  if  tenants  in  common  join  in  a  lease,  there 
are  several  leases  of  their  several  interests  ( //)  ;  ^  for  although 
tenants  in  common  cannot  make  a  joint  lease  of  the 
whole  of  their  *  estate  (2),  yet  if  they  join  in  a  lease  [*11] 
for  years  by  indenture  of  their  several  lands,  it  is 
the  lease  of  each  for  their  respective  parts,  and  the  cross 
confirmation  of  each  for  the  part  of  the  other,  and  no  es- 
toppel on  either  part,  because  an  actual  interest  passes  from 
each  respectively  («).     There  is  no  doubt  that  a  demise  by 

(.r)  Co.Lit.18Ga;  Com.  Dig.  Leases  ton,  1   A.   &  E.  750;  Biirne  v.  Cam- 

(L  5)  ;  Bac.  Abr.  tit.  Joint  Tenants  bridge,  1  Moo.  &  K.  bH9. 

and  Tenants  in  Common  (H.  1) ;  Bro.  («)  Com.  Dig.  tit.  Estates  (K.  8)  ; 

Abr.  Grant,  154.  Bac.  Abr.  tit.  Joint  Tenants  and  Ten- 

(y)  8  Ander.  16;  Jurdain  r.  Stcere,  ants  in  Common   (H.   1);    Mantle  v. 

Cro.  Jac.  83;  Com.  Dig.  tit.  Estates  Wollington,  Cro.  Jac.  166;  Brooks  v. 

(G.  6).-  Foxcroft,  Clayton,  136  ;  1  Roll.  Abr. 

(z)  Heatherly    d.    Worthington    v.  877,  1.  48,  52. 
Weston,  2  Wils.  232 ;  Doe  t'.  Erring- 

of  survivorship,  and  they  have  been  generally  abolished  except  where  ex- 
pressly created  and  except  as  to  executors,  trustees  and  mortgagees  (what 
would  otherwise  be  joint  tenancies  being  held  to  be  tenancies  in  common). 
4  Kent's  Com.  (13tli  ed.)  sec.  361 ;  1  Washburn  on  Real  Property  (5th  ed.) 
pp.  676,  677,  and  note.  Though  joint  tenants  may  terminate  their  tenancies 
as  by  conveyance  from  one  to  another  or  to  a  stranger ;  yet,  if  they  jointh' 
demise  the  premises,  they  cannot  sue  separately  for  the  rent,  their  interests 
being  joint.  1  Wash,  on  Real  Prop.  pp.  679,  680;  4  Kent's  Com.  sec.  364. 
A  surviving  joint  tenant  may  sue  for  rent  upon  a  demise  made  by  liis  co- 
tenants  in  name  of  all,  although  he  himself  did  not  sign  the  lease.  Wall  v. 
Hinds,  4  Gray,  256,  because  the  interest  and  covenants  are  joint. 

1  Leases  by  tenants  in  common.  —  Tenants  in  common  may  join  in 
demising  the  entire  estate  or  each  may  separatel}^  demise  his  own  interest. 
Sturdee  v.  Merritt,  3  Kerr's  (N.  B.)  641 ;  Duke  v.  Hague,  107  Pa.  St.  57.  In 
order  to  convey  the  full  title  all  must  join.  Tainter  r.  Cole,  120  Mass.  162, 164. 
A  lease  by  part  is  valid  against  everybody  except  the  co-tenant  and  those 
claiming  under  him.  Grundy  r.  Martin,  143  Mass.  270;  Cunningham  r. 
Pattee,  09  Mass.  248 ;  Rising  r.  Stannard,  17  Mass.  282.  A  lease  by  one  in 
name  of  all  is  (except  as  above  stated)  the  lease  of  all.  ,  Wenger  v.  Raymond, 
104  Pa.  St.  33.  A  lease  made  by  a  single  tenant  may  be  ratified  by  his  co- 
tenant,  and  then  the  latter  will  be  estopped  to  deny  that  it  is  the  lease  of  all. 
A  demand  of  rent  will  constitute  such  an  implied  ratification.  Keyes  r.  Hill, 
30  Vt.  759.  A  subsequent  release  made  by  a  tenant  to  a  co-tenant  will  con- 
firm the  validity  of  a  prior  lease  made  by  hhn.  Cunningham  v.  Pattee,  09 
Mass.  248  ;  Johnson  v.  Stevens,  7  Cush.  431,  433.  If  they  demise  jointly  they 
must  sue  jointly  for  rent,  though  it  is  said  they  need  not  join  in  an  avowry. 

17 


*11  BY    WHOM   TERMS   GRANTED.  [Ch.  I.  S.  7. 

tenants  in  common,  thougli  joint  in  its  terms,  operates  as  a 
separate  demise  bj  each  tenant  in  common  of  his  undivided 
share,  and  a  confirmation  by  each  of  his  companions  (6). 
Where  joint  tenants  concur  in  granting  a  lease,  the  interest 
of  the  lessee  continues,  notwitlistanding  the  decease  of  either 
of  tlie  lessors,  and  the  survivor  is  entitled  to  the  whole 
rent  (c?).^  So,  if  the  lease  be  at  will,  the  death  of  one  of 
the  lessors  does  not  operate  as  a  countermand  of  the  tenancy 
even  for  a  moiety ;  all  survives  to  the  other,  and  if  the 
lessee  continue  his  possession,  the  survivor  may  maintain 
an  action  for  the  Avhole  rent  (t7).  But  though  each  joint 
tenant  is  considered  entitled  to  the  whole  while  the  joint 
tenancy  continues,  and  is  said  to  be  seised  "  per  my  et  per 
tout "  (e),2  yet  for  the  purposes  of  alienation,  each  has  an 
exclusive  right  to  and  dominion  over,  his  own  share  or  pro- 
portion ;  and,  therefore,  if  one  of  two  joint  tenants  make  a 
lease  of  the  whole,  his  moiety  only  will  pass  (/)•  So  a  lease 
purporting  to  be  made  by  both,  and  executed  by  one  only, 
is  a  good  lease  for  the  moiety  of  him  only  who  has  exe- 
cuted (^). 

If  one  joint  tenant  make  a  lease  of  his  moiety  for  years, 
and  die  before  the  lessee's  entry,  the  lease  will  bind  the  sur- 
vivor, and  the  lessee  will  retaiii  his  interest  in  the  moiety 
demised  until  his  term  expire.  And  so  one  joint  tenant 
may  make  a  lease  to  commence  after  his  death,  and  his  co- 
tenant,  if  he  survive,  will  be  bound  by  it  (7i). 

(b)  Thompson  i'.Hakcwill,  19  C.B.,  (e)  Lit.  s.  288;  Co.  Lit.  186  a;  2 
N.  S.  713  ;  35  L.  J.,  C.  P.  18;  Ecclo-       Blac.  Com.  182. 

stonr.  Clipsham,  1  Wms.  Saund.  153;  (/)  Co.  Lit.  180  a  ;  Bcllingliam  v. 

2   Roll.  Abr.  04  ;    Siiep.  Touch,  85  ;  Alsop,  Cro.  Jac.  52. 
Ileatlierly  d.  Worthington  v.  Weston,  ((f)  Cartwright's  case,  cited  1  Vent. 

2  Wils.  232.  13(!". 

(c)  Henstead's  case,  5  Co.  R.  10  I);  (/()  Lit.  s.  289;  Grute  v.  Locroft, 
Doe  (/.  Aslin  r.  Summersett,  1  B.  &  Cro.  Eliz.  287;  Ilarbin  v.  Barton 
Ad.  135.  Moor.  395;  Whitlock  v.  Ilorton,  Cro. 

(d)  Henstead's  case,  5  Co.  R.  10  b.  Jac.  91  ;    Bellingham   r.  Alsop,  Cro. 

Jac.  52 ;  Clerk  v.  Clerk,  2  Vern.  323. 

4  Kent's  Com.  (13th  cd.)  .^ec.  309;  LeCain  r.  Hosterman,  2  R.  &  C.  (N.  S.) 
229.  An<l  certainly  they  niny  distrain  sei)arateiy  where  they  demise  sepa- 
rately.    Sturdee  r.  Merritt,  3  Kerr's  (N.  B.)  041. 

'  C'odman  r.  Hall,  9  Allen,  335. 

-  Tenants  in  common  are  said  "  to  be  seized  jwr  mj  but  not  per  tout."  4 
Kent's  Com.  4(58. 

18 


Ch.  I.  S.  8.]  LEASE    RY   COPARCENERS.  *12 

Lessees  to  each  other.  —  One  joint  tenant  or  tenant  in 
common  may  make  a  lease  for  years  of  his  part  to  liis  com- 
panion ;  ^  for  it  only  gives  the  latter  a  right  of  taking  the 
whole  profits  instead  of  the  moiety;  and  he  may  contract 
with  his  companion  for  that  purpose,  as  well  as  he  may  with 
a  stranger  (i) ;  and  such  a  lease  extinguishes  the 
jointure  for  the  *  time  (A;),  and  gives  a  right  to  dis-  [*12] 
train  for  the  agreed  rent  (l)^  and  also  a  right  of 
action  for  use  and  occupation  in  case  of  a  holding  over  (m). 
If  there  be  three  or  more  joint  tenants,  the  lessee  would 
hold  the  share  demised  to  him  as  tenant  in  common  with  the 
others  (w). 

Expense  of  repairs.  —  One  tenant  in  common  who  has  ex- 
pended money  on  repairs  which  are  ordinary  repairs  only, 
has  no  right  of  action  against  his  co-tenant  for  contribu- 
tion (o).2 

Sect.  8.  —  Bi/  Coparceners, 

Where  a  tenant  in  fee  or  in  tail  dies,  leaving  several 
daughters  and  no  son  ;  or  several  sisters  and  no  issue,  father 

(j)  Com.  Dig.  tit.  Leases    (I.   5)  ;  (/)  Cowper  v.  Fletcher,  supra. 

Cowper  V.  Fletcher,  6  B.   &  S.  464;  (m)  Leigh  v.  Dickeson,  supra  and 

34  L.  J.,  Q.  B.  187  ;  Leigh  v.  Dicke-  infra. 

son,  L.  K.,  12  Q.  B.  D.  194 ;  53  L.  J.,  (»)  Jurdain  v.  Steere,  Cro.  Jac.  83; 

Q.  B.  120 ;  50  L.  T.  124 ;   32   W.  R.  Blackasper's  case,  Nov,  13. 

339 ;  aft",  in  C.  A.,  15  Q.  B.  D.  60 ;  54  (o)  Leigh  r.  Dickeson,  supra,  note 

L.  J.,  Q.  B.  18  ;  33  W.  R.  538.  (/). 

(A:)  Co.  Lit.  186  a. 

1  A  tenant  in  common  may  lease  to  his  co-tenant,  and  after  leasing  to  him 
he  cannot  maintain  a  suit  for  partition.  Eberts  v.  Fisher,  54  Mich.  294.  A 
licensee  of  a  tenant  in  common  hoUls  in  submission  to  his  licensor.  Bucknam 
V.  Bucknam,  30  Me.  494.  If  one  tenant  in  common  is  ousted  by  his  co-tenant, 
lie  can  maintain  trespass  cjuai-e  cJausum  /regit  against  him,  Erwin  r.  Olmsted, 
7  Cow.  229;  and  if  tenants  divide  the  premises  between  them,  one  can  main- 
tain trespass  against  the  other  if  he  disturb  his  possession,  Keay  v.  Goodwin, 
16  Mass.  1.  Trespass  quare  clansum,  however,  will  not  lie  by  one  tenant  in 
common  against  his  co-tenant  for  entering  upon  the  common  premises  and 
carrying  away  the  common  property,  neither  will  trover  lie  for  conversion  of 
the  property  carried  away,  unless  there  is  such  a  destruction  or  disposition  of 
it  as  to  preclude  the  further  enjoyment  of  it  by  the  tenant.  PerEndicott,  J., 
in  Warner  v.  Abbey,  112  Mass.  355,  360. 

'^  One  tenant  cannot  recover  of  his  co-tenant  for  repairs,  even  though  neces- 
sary, without  a  previous  request  to  join  in  the  repairs,  and  a  refusal.  Mum- 
ford  V.  Brown,  6  Cow.  475;   Doane  v.  Badger,  12  Mass.  65. 

19 


*12  BY   WHOM   TERMS    GRANTED.  [Ch.  I.  S.  9. 

or  brother ;  or  several  aunts  and  no  issue,  &c. ;  lands  de- 
scend among  all  the  daughters,  sisters,  aunts,  &c.,  equally, 
who  make  but  one  heir,  and  are  called  coparceners  (jo  ).i 
Although  they  have  an  unity,  they  have  not  an  entirety  of 
interest,  but  are  properly  entitled  each  to  the  whole  of  a 
distinct  share,  and  there  is  no  survivorship  among  them  {q'). 
Until  partition  is  made  (r),  they  may  either  join  in  a  lease, 
or  each  may  make  a  lease  of  her  own  share.  If  they  join 
in  a  lease,  it  operates  (as  with  tenants  in  common)  as  the 
separate  demise  by  each  of  her  share,  and  should  be  so 
pleaded  (s).  If  they  join  a  lease  they  hold  the  rent  re- 
served in  common  (^)  ;  the  observations,  therefore,  made  as 
to  leases  by  tenants  in  common  (ii)  apply  also  to  leases  by 
coparceners.  One  cannot  sue  separately  for  her  portion  of 
rent  accruing  to  her  and  her  fellows  (;'). 


Sect.  9.  —  Sublease,  by  Tenant  for  Years. 

Sublease.  —  A  lessee  or  tenant  for  years,  who  is  not  re- 
strained by  his  lease  from  subletting,  may  demise  for  any 
less  term  than  he  himself  has,^  at  such  rent,  and  subject  to 
such  covenants,  &c.,  as  may  be  agreed  on  (.?•). 

Rent-charge.  —  A  rcnt-charge  granted  for  life  by  a  tenant 

(p)  Com.   Dig.  tit.   Parceners    (A.  (0  2  Trost.  Abstr.  74. 

1),  (A.  3).  (»)  Jiute,  sect.  7. 

(r/)  Bull,  N.  P.  107  ;  2  Blac.  Com.  (r)  Decliarms  v.  Ilorwood,  10  Bing. 

182,  188;  Co.  Lit.  104  a.  520. 

()•)  See   the    Partition   Acts,   1808  (.r)  Bac.  Abr.  tit.  Leases;    Rex  ?-. 

and  1870  (31  &  32  Vict.  c.  40,  and  39  Wilson,  5  M.  &  Ky.  157  n.     See  fur- 

&  40  Vict.  c.  17).  ther  Ch.  VIL,  Sect.  7,  post,  tit.  Sub- 

(s)  Milliner  v.  Robinson,  Moor.  pi.  Lease. 
939. 

1  The  "technical  distinction  between  coparcenarj'  and  estates  in  common, 
may  be  considered  as  essentially  extinguished  in  the  United  States."  4 
Kent's  Com.  sec.  307. 

-Sublease.  —  A  transfer  by  lessee  reserving  the  last  day  of  the  term  is  a 
sublease.  Davis  v.  Morris,  30  N.  Y.  509.  If  tlie  lessee's  transfer  terminate  at 
midnight  of  one  day,  and  the  principal  lease  at  noon  of  the  next,  the  lessee's 
transfer  is  a  sublease.  Peoj)le  r.  Robertson,  39  Barb.  9.  It  has  been  held  that 
a  transfer  of  the  entire  term,  but  with  covenants  for  re-entry  and  surrender, 
was  a  sublease.  Ganson  r.  Tifft,  71  N.  Y.  48,  &c.  As  to  the  power  of  a  lessee 
for  years  to  resign,  sec  post. 

20 


Ch.  I.  S.  10.]  SUBLEASE  BY  TENANT,   ETC.  *13 

for  years  is  not  void,  but  is  good  as  a  chattel  interest ;  and 
the  goods  of  a  stranger  not  shown  to  hold  the  premises  by 
title  paramount  to  the  rent-charge  (as  by  a  priOr  demise) 
may  be  distrained  for  the  arrears  (y). 


*Sect.  10.  —  Sublease^  hy  Tenant  for  less  than  Years.     [*13] 

Tenants  for  less  periods  than  for  years,  but  who  are 
possessed  of  a  certain  quantity  of  interest,  may  alienate  the 
whole,  or  any  part  of  it,  unless  expressly  restricted  from 
so  doing.  In  fact  every  tenant,  except  a  tenant  at  will  or  at 
sufferance,  has  a  right,  in  the  absence  of  a  contract  to  the 
contrary,  to  make  a  sub-tenancy,  as  incident  to  his  tenancy. 

By  tenants  from  year  to  year.  —  A  tenant  from  year  to  year, 
therefore,  may  assign  his  term,  or  may  underlet  part  of  it,  as 
for  three-quarters  of  a  year,  or  so  many  months,  &c. ;  but  he 
cannot  by  underletting  grant  an  interest  exceeding  his  own 
in  point  of  duration.  If  he  grant  a  lease  by  deed  for  twenty- 
one  years,  such  term  will  continue  in  force  during  his  own 
yearly  tenancy  (^).  If  he  underlet  from  year  to  year,  the 
sub-tenancy  will  take  effect  during  his  own  tenancy,  and  he 
will  have  a  sufficient  reversion  to  enable  him  to  distrain  for 
the  rent  (a). 

A  tenant  for  a  less  term  than  one  year,  as  for  half  a  year, 
a  quarter,  or  a  month,  or  the  like,  may  grant  his  interest,  or 
any  portion  of  it,  to  another,  unless  some  agreement  subsists 
between  him  and  his  lessor,  which  expressly  restricts  him 
from  making  such  disposition. 

By  tenants  at  will. —  A  tenant  at  will  cannot  demise,  for 
that  would  amount  to  a  determination  of  his  estate  at 
will  (^);^  but  a  demise  by  a  tenant  at  Avill,  with  possession 
thereunder,  will  create  a  tenancy  by  estoppel  as  between 

(ij)  Saffery  v.  Elgood,  1  A.  &  E.  (n)  Pike  i-.  Eyre,  9  B.  &  C.  909; 

191.  Curtis  I'.  Wheeler,  Moo.  &  M.  493. 

(~)  Mackay  v.  Mackretli,  4  Doug.  (b)  1  Inst.  57 ;  Moss  v.  Galliniore, 

213;    Oxley  v.  James,  13  M.  &.  W.  1  Dout;.  279;  1  Smith  L.  C.  029  (7th 

209.  ed.)  ;  Birch  v.  Wright,  1  T.  K.  382. 

1  Reckhow  v.  Schanck,  43  N.  Y.  448 ;  Campbell  v.  Procter,  6  Greenl.  (Me.)  12. 

21 


*14  BY  WHOM  TERMS   GRANTED.  [Ch.  I.  S.  11. 

him  and  his  lessee  (c),  and  will  be  as  good  as  against  him- 
self (^).i 

By  tenants  on  sufferance.  —  A  tenant  on  sufferance  cannot 
demise  (e) ;  but  a  demise  by  such  tenant,  with  possession, 
will  create  a  tenancy  by  estoppel  (/). 


Sect.  11.  —  Lease  by  the   Croivn. 

Restrained  by  statute.  —  The  sovereign  is  a  corporation  sole, 
and  at  common  law  might  have  granted  leases  for  lives  or 
for  years  to  any  extent,  and  have  thereby  bound  the  succes- 
sors (^).^  But  by  1  Ann.  stat.  1,  c.  7,  s.  5,  ever}-  grant  and 
lease  by  the  crown  of  any  lands  and  tenements  thereto  be- 
longing  (except  advowsons   and  vicarages)  shall  be  void, 

unless  made  foa'  a  term  not  exceeding  one-and-thirty 
[*14]     years,  or  three  lives,  or  for  some  term  *  of  years 

determinable  upon  one,  two,  or  three  lives,  to  com- 
mence from  the  date  or  making  thereof ;  and  if  made  to  take 
effect  in  reversion  or  expectancy,  the  same,  together  with 
the  estate  or  estates  in  possession,  not  to  exceed  three  lives, 
or  the  term  of  one-and-thirty  years  in  the  whole:  the  tenant 
to  be  liable  to  punishment  for  waste  :  the  ancient  or  most 
usual  rent  or  more,  or  such  other  rent  as  in  the  said  act 
mentioned,  to  be  reserved  and  made  payable  during  the 
whole  term.  By  sect.  6,  where  the  greatest  part  of  the 
yearly  value  of  any  such  crown  lands  consists  of  buildings 
thereon  which  want  to  be  repaired  or  re-edified,  a  lease 
thereof  may  be  granted  for  any  term  not  exceeding  fifty 

(c)  Ante,  2.  (?)  Thunder  d-  Weaver  v.  Belcher, 

(<f)  Blunden   v.  Bough,  Cro.  Car.  3  East,  490;  Cole  Ejec.  456. 

302;  Doe  d.  Goody  v.  Carter,  9  Q.  B.  {f)  Ante,  2. 

805;  Cole  Ejec.  449.  (g)  Com.  Dig.  Grant  (G.  3). 

'  Leases  by  tenant  at  will ;  estoppel.  —  Cook  x\  Cook,  28  Ala.  660 ; 
Ililhourn  ;-.  Fogg,  90  M.tss.  H.  But  a  tenancy  hy  estoppel  will  not  arise  if 
tiie  lessee  do  not  take  possession.  Wright  i'.  Graves,  80  Ala.  410.  Tlie  prin- 
cipal lessor  may  eject  the  sublessee  of  his  tenant  at  will  without  giving  him 
notice  to  quit,  for  there  is  no  privity  between  them,  Kcckhow  v.  Schanck, 
43  N.  Y.  448  ;  or  he  may  sue  him  in  trespass,  Campbell  v.  Procter,  6  Grecnl. 
(Me.)  12. 

-'  The  Queen  r.  Miller,  4  K.  &  G.  (N.  S.)  301. 

22 


Cn.  I.  S.  11.]  LEASE   BY   THE   CROWN.  •  *14 

years  or  three  lives,  subject  to  similar  restrictions  and  con- 
ditions to  those  above  mentioned  (/t). 

Leases  by  the  commissioners  of  •woods  and  forests.  —  In 
modern  times  most  of  the  crown  lands  have  been  placed  under 
the  management  of  the  Commissioners  of  Woods,  Forests, 
and  Land  Revenues,  who  act  under  the  orders,  directions, 
instructions  and  rules  of  the  Lords  of  the  Treasury  (i). 

Proviso  for  re-entry.  —  They  may  grant  losses  for  any  term 
not  exceeding  thirty-one  years  (A;),  or  building  leases  for  any 
term  not  exceeding  ninety-nine  years  (Z),  subject  in  each 
case  to  certain  restrictions  and  conditions  (m),  amongst 
which  there  is  a  restriction  that  "in  each  such  lease  there 
shall  be  contained  "  a  proviso  for  re-entry  on  non-pajanent  of 
rent,  or  non-observance,  or  non-performance  of  the  cove- 
nants (m)  ;  a  survey  and  report  as  to  the  value,  &c.,  must 
be  previously  made  (o),  and  the  lease  must  be  enrolled  in 
the  office  of  Land  Revenues,  Records,  and  Inrolments  (jo). 

Dean  Forest,  mines  and  quarries. — -Leases  of  mines,  miner- 
als, and  quarries  of  the  crown  in  Dean  Forest,  Gloucester- 
shire, are  granted  b}^  the  Commissioners  of  Woods  and 
Forests,  pursuant  to  1  &  2  Vict.  c.  43,  as  amended  by  24  & 
25  Vict.  c.  40  {q). 

Duchy  of  Lancaster.  —  Lands  belonging  to  the  crown,  in 
right  of  the  Duchy  of  Lancaster,  may  be  demised  pursuant 
to  48  Geo.  3,  c.  73 ;  1  &  2  Geo.  4,  c.  52 ;  which  are  not 
repealed  by  10  Geo.  4,  c.  50,  so  far  as  they  relate  to  the 
Duchy  of  Lancaster.  As  to  sales  and  purchases  of  lands  on 
behalf  of  the  Duchy,  see  18  &  19  Vict.  c.  58. 

(h)  See  also  1  Geo.  3,  c.  1 ;  34  Geo.  (A,)  10  Geo.  4,  c.  50,  ss.  22,  26.    See 

3,  c.  75 ;  but  none  of  the  restrictions  Cliit.  Stat.  vol.  ii.  tit.  Crown  Lands, 
contained  in  any  of  these  acts  apply  (/)  Sects.  23,  24,  26. 

or  extend  to  the  private  estates  of  her  (w)  Sects.  27-33. 

Majesty,  which  are  regulated  by  25  (7?)  Sect.  27. 

&  26  Vict.  c.  37.  (o)  Sect.  61. 

(0  10  Geo.  4,  c.  50;  2  &  3  Will.  4,  {]>)  2  Will.  4,  e.  1,  s.  21. 

cc.  1,  112  ;  3  &  4  Will.  4,  c.  1  ;  2  &  3  (7)  Goold   ;•.  Great  Western   Deep 

Vict.  c.  80  ;  3  &  4  Vict.  c.  87 ;  4  &  Coal  Co.,  2  De  Gex,  J.  &  S.  600  ;  the 

5  Vict.  c.  40 ;  7  &  8  Vict.  c.  1 ;  8  &  9  other  Dean  Forest  Acts  are  20  Car. 

Vict.  c.  99;  14  &  15  Vict.  c.  42  (and  2,   c.  8;    1  &  2  Will.  4,  c.  12 ;  6  &  7 

the  numerous  acts  mentioned  in  the  Will.  4,  s.  3 ;  1  &  2  Vict.  c.  42 ;  5  &  6 

schedule  to  that  act)  ;  15  &  16  Vict.  Vict.  cc.  48,  65;  29  &  30  Vict.  c.  62, 

c.  62;  29  &  30  Vict.  c.  62.  ss.  4,  5 ;  29  &  30  Vict.  c.  70. 

23 


*l0  BY   WHOM   TERMS   GIIA^:TED.  [Ch.  I.  S.  12. 

Duchy  of  Cornwall.  —  Lands  belonging  to  the  Ducliy 

[*15]     of  Cornwall  may  be  demised  pursuant  *  to  the  Duchy 

of  Cornwall  Management  Acts,  1863  and  1868  (r). 

When  such  lands  happen  to  be  vested  in  the  crown  they  may 

be  demised  pursuant  to  1  &  2  Will.  4,  c.  5. 

By  Admiralty  or  other  board.  —  When  the  Admiralty  or 
any  other  government  board  are  authorized  to  acquire  land 
for  public  purposes,  they  are  generall}^  empowered  to  sell, 
exchange,  or  demhe  such  parts  thereof  as  in  their  opinion 
will  not  be  required  for  the  public  service.  In  any  such  case 
the  provisions  of  the  particular  statute  must  of  course  be 
strictly  complied  with  (.s). 


Sect.  12.  —  By  Corporations  generally. 

Corporations  are  either  ecclesiastical  or  lay,  the  latter 
being  divided  into  eleemosynary  and  civil.  The  universities 
of  Oxford  and  Cambridge  are  regarded  as  civil  corpora- 
tions (€). 

Lease  by  deed.  —  Corporations  cannot  make  any  disposi- 
tion of  their  property  otherwise  than  by  deed  sealed  with 
their  common  seal ;  ^  thus  they  cannot,  without  deed,  make 

(r)  26  &  27  Vict.  c.  49 ;  SI  &  32  Vict.  c.  117;  U  &  25  Vict.  c.  41,  ss. 
Vict.  c.  35.  14,  15,  16. 

(s)  5  &  0  Vict.  c.  94,  s.  12  ;  18  &  19  (0  Tarkinson's  case,  Cartli.  03  ;  R. 

V.  V.-C.  of  Cambridge,  3  Burr.  1G56. 

1  Can  corporations  convey  property  w^ithout  using  the  corporation 
seal? —  In  America  it  is  held  that  they  can.  Their  seal,  however,  is  necessary 
in  conveyances  of  real  estate  and  in  specialty  contracts,  Sherman  v.  Fitch,  98 
Mass.  59,  63,  64;  Brinley  v.  Mann,  2  Cush.  (Mass.)  337,340  (/;e;- Metcalf,  J.); 
Bates  r.  Boston  &  N.  Y.  Cent.  11.  K.  Co.,  10  Allen  (Mass.)  251,  though  it  has 
been  held  that  if  the  corporation  has  not  adopted  a  common  seal,  any  seal  may 
be  used  instead.     .Mill  l):im  );.  Hovey,  21  Pick.  (Mass.)  417. 

Justice  Story's  opinion. — Justice  Story  (in  Fleckner  v.  U.  S.  Bank,  8 
Wiieat.  .'538,  357),  in  speaking  of  the  former  doctrine  that  corporations  can 
only  act  under  a  common  seal,  said:  "Whatever  may  be  the  original  cor- 
rectness of  this  doctrine  as  applied  to  corjjorations  existing  by  the  common 
law,  in  respect  even  to  which  it  has  certainly  been  broken  in  upon  in  modern 
times,  it  has  no  apjilication  to  cor|)<)rations  created  by  statute  whose  charters 
contemplate  tlic  business  of  the  corporation  to  be  transacted  exclusively  by  a 
special  body  or  board  of  directors.  And  the  acts  of  such  body  or  board  evi- 
denced by  a  written  vote  are  as  completely  binding  upon  the  corjmration  and 

24 


Ch.  I.  S.  12.]    LEASE  BY  CORPORATIONS  GENERALLY.     *lo 

a  lease  for  years  (/*).^  But  one  who  enters  upon,  occupies 
and  pays  rent  for  corporate  property  under  a  lease  for  years 
which  is  not  sealed,  becomes  a  tenant  from  year  to  year  on 

(a)  11.  V.  Chipping-Norton,  5  East,  E.  284;  R.  v.  North  Duffield,  3  M.  & 
239,  2-42 ;  Bird  v.  Higginson,  G  A.  &       S.  2-47  ;  1  Kyd  on  Corp.  203. 

as  complete  authority  to  their  agents  as  the  most  solemn  acts  done  under  tlie 
corporate  seal." 

The  modern  American  theory. —  Corporations  by  the  modern  Ameri- 
can theory  derive  their  powers,  express  or  implied  from  the  act  of  incorporation 
and  must  exercise  them  in  the  manner  therein  prescribed.  Head  v-  Prov.  Ins. 
Co.,  2  Cranch,  127,  129.  If  a  seal  is  thereby  required  it  must  be  affixed,  but 
if  not  required  it  is  not  necessary,  except  as  required  in  cases  of  individuals. 
Fleckner  i\  U.  S.  Bank,  8  Wheat.  338  ;  Bank  of  Columbia  v.  Patterson's 
Adm'r,  7  Cranch,  299 ;  Bank  of  U.  S.  v.  Dandridge,  12  Wheat.  64,  (J8  (per 
Story,  J.);  Danforth  r.  Schoharie,  12  Johns.  (N.  Y),  227,230;  Baptist  Church 
V.  Mulford,  8  N.  J.  L.  182;  Crawford  v.  Longstreet,  43  N.  J.  L.  325;  Peter- 
borough R.  R.  Co.  I'.  Nashua  &  L.  R.  R.  Co.,  59  N.  H.  385 ;  Randall  v.  Van 
Vechten,  19  Johns.  (N.  Y.)  GO ;  Canal  Bridge  v.  Gordon,  1  Pick.  297,  304  ; 
Hayden  v.  Madison,  7  Greenl.  (Me.)  76;  Abbot  v.  Hermon,  7  Id.  118,  121; 
Dunn  V.  Rector,  14  Johns.  (N.  Y.)  118;  Mott  v.  Hicks,  1  Cow.  (N.  Y.)  513; 
Overseers  of  North  Whitehall  v.  Overseers  of  South  Whitehall,  3  S.  &  R.  (Pa.) 
117  ;  Garvey  v.  Colcock,  1  Nott  &  M'Cord  (S.  C.)  231 ;  Hayden  v.  Middlesex 
Turnpike  Co.,  10  Mass.  397,  403  (per  Sewall,  J.).  Angell  &  Ames  on  Corpo- 
rations (11th  ed.)  sec.  102;  1  Taylor's  Private  Corporations  (2d  ed.)  127. 

Chief  Justice  Marshall's  opinion.  —  Said  Marshall,  C.  J.,  in  Head  v. 
Prov.  Ins.  Co.,  2  Cranch,  127,  169:  "  The  act  of  incorporation  is  to  them  an 
enabling  act;  it  gives  them  all  the  power  they  possess;  it  enables  them  to 
contract,  and  when  it  prescribes  a  mode  of  contracting,  they  must  observe 
that  mode,  or  the  instrument  no  more  creates  a  contract  than  if  the  body  had 
never  been  incorporated." 

Thompson's,  Ch.  J.,  Opinion.  —  Thompson,  Ch.  J.,  in  Danforth  v.  Scho- 
harie Turnpike  Co.,  12  Johns.  (N.  Y.)  227,  230,  in  speaking  of  the  doctrine 
that  a  corporation  could  not  act  except  under  the  corporate  seal,  said :  "  Such 
would  seem  to  be  the  doctrine  of  some  old  adjudged  cases,"  but  "the  law  of 
the  present  day  seems  to  be  otherwise  settled." 

Knapp's,  J.,  Opinion.  — Knapp,  J.,  in  Crawford  v.  Longstreet,  43  N.  J.  L. 
325,  329,  speaks  of  it  as  "  the  ancient  rule  of  the  common  law,"  and  says  that 
it  was  opposed  to  the  "  demands  of  practical  business  necessity,"  and  has  been 
"  practically  abrogated  in  this  country." 

Change  from  the  old  theory. — In  Bank  of  Columbia  v.  Patterson's 
Adm'rs,  7  Cranch,  299,  305,  306,  307,  Justice  Story  sketches  the  gradual  rise 
of  the  law  from  this  ancient  doctrine  to  the  modern  theory  "  that  whenever 
a  corporation  is  acting  within  the  scope"  of  its  powers  "all  parol  contracts 
made  by  its  authorized  agents  are  express  promises  of  the  cor])orati()n." 

1  Corporation  seal ;  is  it  necessary  to  validity  of  lease  for  years  ? 
—  Corporations  may  ta/ce  leases  for  years  not  under  seal,  Crawford  v.  Long- 
street,  43  N.  J.  L.  325;  Peterborough  R.  R.  Co.  v.  Nashua  &  L.  R.  R.  Co.,  59 
N.  H.  385,  and  there  is  no  doubt  (see  previous  note)  may  also  give  them,  the 
only  limitations  being  that  the  leases  must  not  be  tdtra  vires  (either  as  to  the 
corporation  or  its  agents)  or  within  the  statute  of  frauds,  and  they  must  cou- 
form  to  the  requirements  of  the  charter. 

25 


*15  BY   WHOM   TERMS    GRANTED.  [Ch.  I.  S.  12. 

such  terms  of  the  lease  as  are  applicable  to  a  3'early  ten- 
ancy (.r). 

Name  of  the  corporation.  —  A  corporation  cannot  either 
take   or  grant  but  by  its  proper   name    of   incorporation ;  ^ 

(x)  Ecclesiastical  Commissioners  v.  Merral,  L.  R.,  4  Ex.  162  ;  38  L.  J.  Ex.  93. 

^Corporation  name.  —  The  statement  of  the  text  is  much  too  broad. 
Statutory  requirements  must  of  course  be  complied  with.  In  general  it  may 
be  said  the  name  of  the  corporation  is  not  essential  in  gifts  and  devises,  if 
the  corporation  is  so  described  that  it  can  be  identified.  First  Parish  in 
Sutton  V.  Cole,  3  Pick.  232 ;  N.  Y.  Inst,  for  Blind  v.  How's  Ex'rs.,  10  N.  Y. 
84,  88.  "  It  is  well  settled  that  a  devise  or  bequest  to  a  corporation  need  not 
state  its  corporate  name.  It  is  sufficient  that  the  devisee  or  legatee  is  so  de- 
fined as  to  be  distinguished,"  per  Denio,  J.  Neither  is  the  name  essential 
(f/eneralli/)  in  contracts  ;  as,  for  example,  cashiers'  checks,  signed  by  cashier, 
individually  bind  tlie  bank  if  issued  in  its  business.  Mechanics'  Bank  of 
Alexandria  v.  Bank  of  Columbia,  5  "Wheat.  320  (parol  evidence  being  admitted 
to  prove  them  the  checks  of  tlie  bank).  Drafts  accepted  by  corporation  in 
name  of  an  individual  bind  it.  Conro  v.  Port  Henry  Iron  Co.,  12  Barb.  (N.  Y. 
Supreme  Ct.)  27,  53.  A  promissory  note  running  to  a  corporation  under  a 
wrong  name  is  collectible,  Medway  Cotton  Manuf.  Co.  i\  Adams,  10  Mass. 
300  ?  or  under  a  name  varying,  from  true  name,  Newport  Mechanics'  Man.  Co.- 
r.  Starbird,  10  N.  H.  123  ;  and  a  contract  varying  in  name  materially  from  true 
name  is  enforcible.  President  &c.  of  Berks.,  &c..  Road  v.  Myers,  G  S.  &  R.  (Pa.)  12, 
17  (the  identity  here  was  said  by  Gibson,  J.,  to  be  a  question  for  the  jury). 
A  lease  for  years  taken  by  a  committee  of  a  corporation  duly  authorized  in 
their  own  names  is  the  corporation's  lease.  Carroll  v.  St.  John's  Society,  125 
Mass.  505.  In  Conro  v.  Port  Henry  Iron  Co.,  supra  (12  Barb.  27,  53),  Wiilard, 
P.  J.,  said :  "  To  create  a  liability  in  the  Port  Henry  Iron  Company  ...  it  is  by  no 
means  essential  that  the  corporate  name  should  be  used  in  the  drafts."  And 
it  is  held  that  corporations  are  liable  upon  contracts  made  by  tlieir  duly  au- 
thorized agents  in  their  own  names  in  the  business  of  the  company.  Hank  of 
Columbia  v.  Patterson,  7  Cranch,  299;  Randall  v.  Van  Vechten,  19  Johns. 
(N.  Y.)  00;  Mechanics'  Bank  of  Alexandria  v.  Bank  of  Columbia,  5  Wheat. 
.320  ;  Conro  v.  Port  Henry  Iron  Co.,  12  Barb.  27, 53.  Corporations  (in  general) 
can  only  sue  and  be  sued  under  the  name  given  them  in  the  act  of  incorpora- 
tion, Mauney  v.  Motz,  4  Ired.  Eq.  (N.  C.)  195, 197,  because  their  power  to  sue, 
being  derived  from  their  charters,  must  be  exercised  in  the  mode  therein  pre- 
scribed. Tiie  "  corporate  name  can  be  changed  only  by  the  same  power  by 
whicli  the  corporate  body  was  created."  Angell  &  Ames  on  Corp.  (11th  ed.) 
sec.  102.  In  its  ordinary  business  transactions  a  corporation  acts  through  its 
board  of  directors,  wiio  of  course  do  not  need  any  power  of  attorney,  sealed 
or  otherwise.  Burrill  v.  Nahant  Bank,  2  Met.  103;  Taylor  on  Priv.  Corp. 
(2d  ed.)  180.  Whenever  any  special  agent  or  attorney  is  required,  he  is  ap- 
pointed by  vote  of  the  corporators  or  directors,  and  the  corporation  seal  is  not 
essential  to  the  validity  of  his  ajipointment  except  where  it  would  be  necessary 
in  case  of  individuals.  Justice  Story  says,  tiiat  "  It  is  now  finally  established, 
both  in  iMigland  and  America,  that  a  corjxjration  may  he  bound  by  a  promise 
of  its  duly  authorized  agent,  although  such  authority  be  only  by  virtue  of 
a  corporate  vote  unaccompanied  by  tiie  corporate  seal."  Bank  of  U.  S.  v. 
Dandridge,  12  Wheat.  04,  08.     Directors  are  not  agents   in  the  sense  that  a 

26 


Ch.  I.  S.  12.]   LEASE  BY  CORPORATIONS  GENERALLY.     *16 

though  sometimes  a  minute  variation  in  the  name  is  not  so 
material  as  to  avoid  a  grant  (y/).  As  to  naming  tlie  corpora- 
tion, it  need  only  be  observed  that  corporations  aggregate,  as 
dean  and  chapter,  mayor  and  commonalty,  warden  and  fel- 
lows, &c.,  may  make  or  confirm  leases  without  expressing 
either  the  christian  or  surname  of  the  dean,  mayor,  warden, 
&c.,  because,  in  their  politic  capacity  as  a  corporation  aggre- 
gate, they  continue  always  the  same,  and  are  said  never  to 
die  ;  but  in  leases  or  confirmations  by  a  bishop,  dean,  or  other 
sole  corporation,  both  the  christian  and  surname,  or  at  least 
the  christian  name  and  title,  ought  to  be  expressed;  as, 
"John,  Bishop  of  P."  (2). 

Appointment  of  attorney,  -when  necessary.  —  Where  any 
personal  act  is  necessary  in.  the  case  of  a  corporation,  that 
act  must  be  done  by  attorney  appointed  by  deed  under  their 
common  seal  (a)  ;  for  however  it  may  be  as  to  ordi- 
nary services,  *  they  cannot  appoint  a  person  to  do  [*16] 
any  act  which  concerns  their  interest  or  title  in  land, 
unless  it  be  by  deed  (6).  A  corporation  cannot  appear  in 
court  otherwise  than  by  attorney  (c),  who  ought,  for  his 
own  security,  to  have  a  retainer  under  their  common 
seal  (c?). 

A  lease  to  charitable  uses  by  a  corporation  of  lands  already 
in  mortmain  is  not  affected  by  the  provisions  of  9  Geo.  2,  c. 
36  (e).  Where  a  corporation  has  by  a  private  act  of  parlia- 
ment power  to  sell  and  exchange  land,  a  power  to  lease  the 


(y)  1    Kyd    on    Corp.    234,    237  ;  (c)  1  Kytl  on  Corp.  270. 

Mayor,  &c.,  of  Carlisle  v.  Blamire,  8  {d)  Arnold  r.  The  Mayor,  &c.,  of 

East,  487.  Poole,  4  M.  &  G.  860;  2  r)owl.,  N.  S. 

{z)  2  Inst.  666;  Bac.  Abr.  tit.  Leases  574,  cited  5  Q.  B.  546;  Lewis  i'.  The 

(G.  3).  Mayor,  &c.,  of   Rochester,  9   C.  B., 

(a)  Doe   d.   Bank   of    England   v.  N.  S.  401.     See  form  of  retainer,  Id. 

Chambers,  4  A.  &  E.  410;  1  Kyd  on  408. 
Corp.  268.  (e)  Walker  v.  Richardson,  2  M.  & 

{b)  Bac.  Abr.  tit.  Corporations  (E.  W.  882;    Att.-Gen.  v.  Glyn,  12  Sim. 

3).  84  ;  Ashton  v.  Jones,  28  Beav.  460. 


delegated  power  cannot  be  delegated,  but  they  have  power  to  appoint  agents 
to  execute  conveyances,  &c.  Burrill  v.  Nahant  Bank,  2  Met.  I(i3  (and  sec  per 
Shaw,  C.  J.,  pp.  166,  167).  They  derive  their  powers,  however,  from  the 
charter  and  by-laws,  and  are  not  necessarily  similar  in  all  corporations. 

27 


*16  BY    WHOM   TERMS   GRANTED.  [Ch.  I.  S.  12. 

land  and  give  the  option  of  pm-cliase  to  the  lessee  is  im- 
plied (/). 

Lease   by    company.  —  Companies  incorporated  by  act   of 
parliament  for  the  purpose  of  carrying  on  anj^  undertaking, 
may  demise  lands  ^  by  their  directors  or  a  committee  of  direc- 
(/)  In  re  Female  Orphan  Asylum,  15  W.  R.  1056 ;  17  L.  T.  59. 

^  Leases  by  corporations.  —  Corporations  in  America  may  demise  lands 
in  writing  or  by  parol,  witli  or  without  the  common  seal,  provided  the  demises 
are  within  the  scope  of  the  business  for  which  the  company  was  chartered. 
Peterborough  R.  R.  Co.  i'.  Nashua  &  L.  R.  R.  Co.,  59  N.  H.  385  ;  Maehias 
Hotel  Co.  V.  Fisher,  56  Me.  321.  A  railroad  company  may  lease  its  road  and 
franchise  if  spectallij  authorized  by  statute.  Phila.  &  Erie  R.  R.  Co.  v.  Cata- 
wissa  R.  R.  Co.,  53  Pa.  St.  20 ;  Black  v.  Delaware  &  Raritan  Canal  Co.,  22 
N.  J.  Eq.  130 ;  Mahoney  i-.  Atl.  &  St.  L.  R.  R.  Co.,  63  Me.  68  ;  Murch  v.  Con- 
cord  R,.  R.  Co.,  29  N.  H.  35;  Pierce  v.  Concord  R.  R.  Co.,  51  N.  H.  503. 

They  cannot,  however,  make  such  leases  without  special  statutory  authority, 
because  they  are  breaches  of  implied  contracts  with  the  state,  and  generally 
ultra  vires.  Thomas  r.  Railroad  Co.,  101  U.  S.  71 ;  Shrewsbury  &  Birming- 
ham R.  Co.  V.  Northwest  R.  Co.,  6  H.  L.  Cas.  113 ;  York  &  Maryland  L.  R.  R. 
V.  Winans,  17  How.  39;  Langley  v.  Boston  &  Maine  R.  R.,  10  Gray,  103; 
Macon  &  Augusta  R.  R.  Co.  v.  Mayes,  49  Ga.  355 ;  Abbott  v.  Johnstown,  &c., 
R.  R.  Co.,  80  N.  Y.  27;  Carleton,  &c.,  R.  R.  Co.  v.  Grand  Southern  Ry.  Co., 
21  N.  B.  339,  357.  The  same  principle  applies  in  regard  to  taking  leases  of 
other  railroads.  There  must  be  special  statutory  authority.  (See  post,  ch.  2, 
sec.  9,  note.) 

Whether  a  corporation  lease  is  ultra  vires  depends  upon  the  objects  of  the 
corporation,  and  the  i)urposes  for  which  it  was  given.  A  corporation  has 
power,  without  special  authority,  to  give  its  promissory  notes  to  pay  legitimate 
debts,  Moss  v.  Oakley,  2  Hill  (N.  Y.)  265;  Kclley  r.  Mayor,  4  Id.  263,  265 
{per  Cowen,  J.);  Mott  v.  Hicks,  1  Cow.  (N.  Y.)  513;  Barker  v.  Mechanics' 
Ins.  Co.,  3  Wend.  (N.  Y.)  94,  97  {per  Savage,  Ch.  J.)  ;  may  mortgage  real 
estate  to  secure  a  debt,  Burrill  v.  Nahant  Bank,  2  Met.  163  ;  may  contract 
debts  for  repairs.  Bank  of  Columbia  v.  Patterson's  Admrs.,  7  Cranch,  299  ;  for 
services  of  employees,  &c.  But  a  banking  corporation  cannot  take  special 
deposits,  Foster  v.  Essex  Bank,  17  Mass.  479 ;  neither  can  it  take  stock  in  a 
railroad,  Nassau  Bank  v.  Jones,  95  N.  Y.  115. 

Whatever  are  the  statutory  requirements  as  to  the  execution  of  a  corpora- 
tion lease,  they  must  be  strictly  complied  with.  For  example,  where  tlie 
charter  provides  that  the  execution  must  be  by  act  of  tiie  directors,  a  lease 
autliorized  by  vote  of  stockholders  is  invalid,  Conro  v.  Port  Henry  Iron  Co., 
12  Barb.  (N.  Y.  Supreme  Ct.)  27  ;  and  wiienever  an  ultra  vires  lease  has  been 
made  it  is  the  duty  of  the  company  to  rescind  it  at  the  earliest  possible 
moment,  Woodruff  v.  Erie  Ry.  Co.,  93  N.  Y.  609;  and  if  a  corporation  lias 
granted  an  ultra  vires  lease,  and  lessee  lias  occupied,  he  must  pay  rent.  Same 
V.  Same.  The  relation  of  landlord  and  tenant  by  estoppel,  exists  if  a  cor- 
poration take  the  benefit  of  a  lease  made  within  tlie  scope  of  its  powers,  but 
by  unauthorized  agents.  Peterborougli  R.  R.  Co.  v.  Nashua  &  L.  li.  R.  Co., 
59  N.  II.  385.  I'arties  dealing  with  corporations  are  charged  with  notice  of 
the  limitations  in  their  charters.  Per  Gray,  C.  J.,  in  Davis  r.  Old  Colony  Rail- 
road, 131  Mass.  258,  200. 

28 


Ch.  I.  S.  1-3.]     LEASES   BY   MUNICIPAL   CORPORATIONS.  *16 

tors  under  the  common  seal  of  the  company  if  the  lease  be 
for  more  than  three  years,  and  by  writing  or  parol  if  it  be 
for  a  less  period,  by  virtue  of  the  79th  section  of  the  Com- 
panies Clauses  Consolidation  Act,  1845  (8  Vict.  c.  10). 

Lease  by  railway  company.  —  A  railway  company  may  not 
lease  their  line  except  by  virtue  of  some  special  act ;  ^  and 
when  such  lease  is  authorized,  it  must,  by  virtue  of  the  112th 
section  of  the  Railways  Clauses  Consolidation  Act,  1845 
(8  Vict.  c.  20),  contain  all  usual  and  proper  covenants  on 
the  part  of  the  lessee  for  maintaining  the  railway. 


Sect.  13.  —  Bi/  3Iunicipal  Corporations. 

At  common  law.  —  At  common  law  there  was  no  restraint 
on  civil  corporations  granting  such  leases  as  they  pleased, 
consistently  with  their  own  estates,  bye-laws  and  private 
statutes  (,9).^ 

Leases  for  31  years  without  fine.  —  By  the  INIunicipal  Cor- 
porations Act,  1882,  45  &  46  Vict.  c.  50,  s.  108,  replacing, 
without  material  alteration,  the  repealed  ss.  94-96  of  the 
Municipal  Corporations  Act,  1835,  5  &  6  Will.  4,  c.  76,  muni- 
cipal corporations  cannot  demise  their  lands,  without  the 
consent  of  the  Lords  of  the  Treasury,  for  a  longer  term  than 
thirty-one  years,  reserving  during  the  whole  term  such  clear 
yearly  rent  as  to  the  council  of  the  borough  shall  appear 

{g)  Smith  v.  Barrett,  1  Sid.  101. 

^  See  note  1. 

2  Municipal  corporations. — Municipal  corporations  may  grant  leases 
when  not  ultra  vires.  For  example,  the  selectmen  of  a  town,  duly  authorized 
by  vote  of  the  town,  may  orally  lease  at  will  a  town  wharf.  Inhabitants  of 
Hingham  r.  Sprague,  15  Pick.  102.  A  municipal  corporation,  under  a  grant 
in  its  charter  to  establish  permanent  ferries,  and  fix  the  rates,  fees,  and  rents, 
has  an  implied  power  to  lease  a  ferry.  Macdonell  i'.  I.  &  G.  N.  Ry.  Co.,  60 
Tex.  590. 

Implied  contracts. — Municipal  corporations,  like  other  corporations, 
are  liable  upon  their  implied  contracts  as  well  as  their  express  ones,  Hayden 
j\  Inhabitants  of  Madison,  7  Grecnl.  (Me.)  76,  and  are  bound  by  acts  of  un- 
authorized agents,  if  they  accept  the  benefit  of  them.  Abbott  r.  Hermon,  7 
Id.  118,  121.  A  school  district  which  takes  possession  of  and  uses  a  school- 
house  erected  by  contract  with  its  agents,  is  estopped  to  deny  the  authority  of 
the  agents. 

29 


*17  BY   WHOM   TERMS    GRANTED.  [Ch.  I.  S.  13. 

reasonable,  without  any  fine  ;  or  in  the  case  of  a  building 
lease,  or  of  a  lease  of  buildings  as  specified  below,  for  a 
longer  term  than  seventy-five  years. 

Other  leases.  —  When  the  council  deem  it  expedi- 
[*17]     ent  to  demise  or  lease  for  a  longer  term,  or  upon  *  dif- 
ferent terms  and  conditions  to  those  above  mentioned, 
they  must  obtain  the  approbation  of  the  Lords  of  the  Treas- 
ury. 

Renewed  leases.  —  By  sect.  110,  replacing  the  repealed  sect. 
95  of  the  act  of  1835,  in  certain  specified  cases,  leases  may 
be  renewed  by  the  council  of  the  borough,  for  such  term  of 
years,  either  absolutely  or  determinable  with  any  life  or 
lives,  for  such  life  or  lives,  and  at  such  rent,  and  upon  the 
payment  of  such  fine,  and  with  or  without  any  covenant  for 
future  renewal,  as  might  have  been  permissible  in  case  that 
act  had  not  passed. 

This  section  is  to  be  construed  liberally ;  but  although 
renewals  need  not  be  on  precisely  the  same  terms,  there 
must  be  such  an  uniformity  as  to  show  that  the  same  lease 
has  been  renewed.  A  renewal  on  a  fine,  and  at  an  under- 
value, with  variations  in  the  covenants,  and  a  different  rent 
reserved,  is  not  valid  (Ji). 

Building  leases.  —  By  sect.  108,  also  replacing  without  ma- 
terial alteration  the  repealed  sect.  96  of  the  act  of  1835,  the 
council  of  a  borough  may  make  a  lease  for  not  exceeding 
seventy-five  years,  and  either  at  a  reserved  rent  or  on  a  fine 
or  both,  as  the  council  think  fit :  (i.)  of  tenements  or  here- 
ditaments, the  greater  part  of  the  yearly  value  of  wliich  at 
the  time  of  making  the  lease  consists  of  buildings ;  or  (ii.) 
of  land  proper  for  the  erection  of  any  houses  or  other  build- 
ings tliereupon,  with  or  witliout  gardens,  &c. ;  (iii.)  where 
the  lessee  agrees  to  erect  a  building  or  buildings  thereon  of 
greater  yearly  value  than  the  land,  of  land  proper  for  gar- 
dens, &c.,  to  \)Q  used  witli  any  other  house  or  other  building 
erected  or  to  be  erected  on  any  such  land,  belonging  either 
to  the  borough  or  to  any  other  proprietor,  or  proper  for  any 
other  purpose  calcuLited  to  afford  convenience  or  accommo- 
dation to  the  occupiers  of  any  such  house  or  building, 
(Ji)  Att.-Gcn.  V.  Great  Yarmoutli,  21  IJcav.  G26. 
80 


Cii.  I.  S.  U.]  ECCLESIASTICAL   LEASES.  *18 

Working  men's  dwellings.  —  By  sect.  Ill  of  the  same  act, 
reproducing  the  Working  Men's  Dwellings  Act,  1874,  the 
council  of  a  borough  may  make  leases  for  999  years,  or  for 
any  shorter  term,  of  corporate  land  converted  by  them  into 
sites  for  working  men's  dwellings,  with  the  approval  of  the 
Treasury,  for  the  purpose  of  such  dwellings  being  erected 
thereon  by  the  lessee. 

The  Labouring  Classes  Lodging  Houses  Act,  1851  (14  & 
15  Vict.  c.  34),  contained  provisions  (see  s.  2),  having  a 
similar  object ;  but  that  act  has  not  been  adopted  by  any 
single  town  council.  The  Housing  of  the  Working  Classes 
Act,  1885  (48  &  49  Vict.  c.  72),  enlarges  (see  s.  2)  the  scope 
of  the  Act  of  1851,  by  allowing  the  erection  of  separate 
houses,  in  the  event  of  that  act  being  adopted,  but  does  not 
seem  to  increase  the  facilities  for  its  adoption. 


*  Sect.  14.  —  Ecclesiastical  Leases}  [*18] 

(a)   The  "•  Enahliyig  "  and  "  Disabling  "  Statutes. 

At  common  law.  —  By  the  common  law,  all  ecclesiastical 
corporations  aggregate  might  make  any  leases  they  thought 
fit,  without  the  confirmation  of  any  person  (z),  and  so  might 
eleemosynary  corporations,  as  masters  and  fellows  of  colleges, 
masters  of  hospitals  and  their  brethren  (i).  But  ecclesiastical 
corporations  sole,  as  archbishops,  bishops,  deans,  prebendaries, 
parsons,  and  vicars,  and  others,  could  not  make  leases  hi7id- 
ing  on  their  successors,  of  lands  and  tenements  whereof  they 
were  "seised  in  their  corporate  right,  except  with  the  consent, 
and  in  some  cases  with  the  confirmation,  of  such  persons  as 
the  law  required  (/c). 

(0  Co.  Lit.  44  a.  Touch.  281;  Woodf.  L.  &  T.  20-23 

(^')  Co.   Lit.   44    a,    07    a;    Shep.       (9tli  ed.). 

1  Powers  of  ecclesiastical  corporations.  —  Ecclesiastical  corporations 
may  grant  leases.  The  rector,  church-wardens  and  vestry  of  a  parish  may  lease 
a  ferry  granted  them  by  tlie  crown  or  other  propertj'.  Eraser  v.  Drynan, 
4  Allen  (N.  B.)  74  ;  Hughes  i-.  Holmes,  1  Allen  (N.  B.)  12.  Ecclesiastical 
corporations  in  the  American  states  are  very  much  like  private  civil  corpo- 
rations. They  differ  of  course  as  to  their  implied  powers  somewhat,  owing  to 
the  difference  in  their  scope  and  character  of  their  property. 

31 


*19  BY   WHOM   TEEMS    GRANTED.  [Ch.  I.  S.  14. 

The  exercise  of  such  powers  having  been  much  abused  by 
owners  for  the  time  being,  to  the  prejudice  of  their  successors, 
the  legislature  from  time  to  time  interfered  and  passed 
various  disabling  or  restraining  statutes  (/).  Prior  to  certain 
ncts^  such  as  "  The  Ecclesiastical  Leasing  Act^  1842,"  all  passed 
in  the  reign  of  Queen  Victoria,  which  will  be  presently  ad- 
verted to,  no  lease  from  any  ecclesiastical  corporation,  aggre- 
gate or  sole,  could  safely  be  made  otherwise  than  in  pursu- 
ance of  some  or  one  of  these  statutes,  with  such  consent  (if 
any)  and  subject  to  such  restrictions,  and  containing  such 
covenants  and  conditions  as  were  prescribed  by  the  act  or 
acts  pursuant  to  which  the  lease  was  made.  The  "  dis- 
abling "  statutes,  however,  although  not  repealed  (??i),  are 
almost  entirely  superseded  (w)  by  the  statutes  of  Queen 
Victoria,  and  are  now  of  consequence  chiefly  in  relation  to 
the  vested  interests  created  under  them,  as  showing  the 
course  of  legislation  on  the  subject,  and  as  explaining  the 
phraseology  of  ecclesiastical  leases. 

The  Enabling  Act.  —  By  32  Hen.  8,  c.  28  (commonly  called 
the  Enabling  Act),  all  persons  seised  of  lands  in  fee  simple 
in  right  of  their  churches  (o)  (except  parsons  and  vicars(j9)) 
may,  by  indenture,  demise  such  parts  thereof  as  have  been 
most  commonly  letten  to  farm  and  occupied  by  the  farmers 
thereof  for  twenty  years  next  before  such  demise,  for  any 
term  not  exceeding  twenty-one  ^^ears  or  three  lives,  reserving 
yearly  during  the  whole  term  the  most  accustomed  rent  or 
more  ;  such  lease  not  to  be  made  without  impeachment  of 
waste,  nor  whilst  there  is  any  old  lease,  unless  the  same  shall 
expire  or  be  surrendered  or  ended  within  one  year  next*  after 

the  making  of  the  new  lease. 
[*19]  *  It  is  to  be  observed  that  leases  made  in  pursuance 

of  this  act  do  not  require  any  confirmation  whatever. 

Archbishops,  bishops,  and  other  ecclesiastical  corporations 
sole  (except  parsons  and  vicars)  may  grant  leases  pursuant 

(/)  See   Cliit.   Stat.   tit.   "Leases,"  (o)  This  act  lias  been  repealed  by 

vol.  iv.,  Lease  (Ecclesiastical,  &c.).  10  &  20  Vict.  c.  120,  s.  85,  "  except  so 

(m)  Sec  Jenkins  r.  firecn,  27  Heav.  far  as  relates  tn  leases  made  by  per- 

440.  sons  bavin^j  an  estate  in  rifj;lit  of  tbeir 

(n)  See  Pliillimore's  Ecclesiastic  nl  cliurcbes." 

Law,  vol.  ii.  p.  1047.  (/')  ISect.  4. 

32 


Cii.  I.  S.  14.]  ECCLESIASTICAL   LEASES.  *19 

to  the  above  act.  A  prebendary  appears  to  be  within  the 
act  (^q)  ;  and  so  does  the  chancellor  of  a  cathedral  church  (r), 
but  not  a  perpetual  curate,  whose  curacy  has  been  augmented 
by  a  grant  of  lands  under  the  Queen  Anne's  Bounty  Acts; 
for  either  he  is  not  seised  in  fee  in  right  of  his  church,  or  he 
is  a  quasi-vicar  (s).  Corporations  aggregate,  such  as  deans 
and  chapters,  universities,  colleges,  &c.,  are  not  within  the 
statute  (0  ;  nor  are  copyhold  lands  (ii). 

The  first  Disabling  Act.  —  By  the  Disabling  or  Restraining 
Act  (1  Eliz.  c.  19),  s.  5,  all  leases  by  any  archhishop  or  bishop 
of  any  parcel,  &c.,  for  more  than  twenty-one  years  or  three 
lives,  or  whereupon  the  old  accustomed  yearly  rent  or  more 
shall  not  be  reserved  and  made  payable  yearly  during  the 
whole  term,  "shall  be  utterly  void  "  (x). 

Archbishops  and  bishops.  —  It  is  to  be  obseryed  that  only 
archbishops  and  bishops  are  restrained  by  this  statute.  But 
tlie  act  applies  to  all  leases  made  by  them,  although  confirmed 
by  the  dean  a7id  chapter,  except  leases  made  pursuant  to  32 
Hen.  8,  c.  28  (?/),  which  are  not  interfered  with.  Concurrent 
leases,  if  confirmed  by  the  dean  and  chapter,  are  valid  pro- 
vided they  do  not  exceed  (together  with  the  lease  in  being) 
the  term  permitted  by'  the  above  act. 

Leases  of  ecclesiastical  property  for  t-wenty-one  years  or  three 
lives.  —  By  the  Restraining  Act  (13  Eliz.  c.  10),  s.  3,  all 
leases  by  any  master  and  fellows  of  any  college,  dean  and 
chapter  of  any  cathedral  or  collegiate  church,  master  or 
guardian  of  any  hospital  (s),  parson,  vicar,  or  any  other 
having  any  spiritual  or  ecclesiastical  living  of  any  parcel, 
&c.,  for  more  than  twenty-one  years  or  three  lives,  or  not 
reserving  the  accustomed  yearly  rent  or  more,  "shall  be 
utterly  void."     Sect.  4  contains  a  saving  of  private  statutes. 

(9)  Acton  V.  Pritcher,  4  Leon.  51 ;  (h)  As  to  leases  of  copyholds,  see 

Watkiiison  v.   Man,   Cro.   Eliz.  349  ;  24  &  25  Vict.  c.  105,  post,  26. 

but  see  Lit.  ss.  644-648  ;  Doe  d.  Rich-  (x)  The   exception    in   this  act  of 

ardson  i\  Thomas,  9  A.  &  E.  556.  leases  to  the  crown  was  repealed  by  1 

(r)  Bisco  i;.  Holte,  Lev.  112;  Sid.  Jac.  1,  c.  3,  which  renders  all  such 

158;  Ensden  v.  Dennis,  Palm.  105.  leases  utterly  void. 

(s)  Doe  d.  Richardson  i-.  Thomas,  (.;/)  Ante,  18. 

9  A.  &  E.  556.  (z)  Explained,  as  to  hospitals,  by 

(0  10  Co.  R.  60  a.  14  Eliz.  c.  14  ;  and  see  39  Eliz.  c.  5,  s. 

6  ;  post,  20. 

33 


*20  BY    WHOM   TERMS   GRANTED.  [Ch.  I.  S.  14. 

This  act  does  not  enable  parsons  or  vicars  to  make  any 
leases  whatever  without  the  consent  of  the  patron  and  ordi- 
nary (a).  But  it  restrains  them  from  making  any  lease,  even 
with  such  consent^  for  more  than  twenty-one  years  or  three 
lives,  or  without  reserving  the  accustomed  yearly  rent  or 
more.  A  lease  by  a  vicar  (with  such  consent)  for  three 
lives  of  uninclosed  waste  land  not  let  before  is 
[*20]  *  void  as  against  his  successor,  notwithstanding  the 
lessee  covenants  to  inclose  the  land  and  pay  a  rack- 
rent  for  it  (^). 

Void  means  voidable.  —  Although  this  statute  declares  that 
all  leases  not  made  according  to  its  provisions  shall  be  utterly 
void,  it  has  been  frequently  held  that  such  leases  are  good 
during  the  life  of  the  lessor  (c)  ;  and  even  after  the  lessor's 
death  they  are  not  void,  but  only  voidable  l)y  the  successor, 
who  may  confirm  them(t^).  But  the  Statute  of  Limitations 
(3  &  4  Will.  4,  c.  27)  does  not  begin  to  run  against  such 
successor  until  he  exercises  his  option  by  bringing  an  action 
for  the  recovery  of  the  property.  This  was  decided  in  a 
case  where  the  governors  of  a  hospital  granted  a  lease  in 
1783  for  ninety-nine  years  at  a  pepper-corn  rent,  and  their 
successors  brought  an  action  to  set  the  lease  aside  in 
1876  {e). 

Leases  by  curates.  —  By  14  Eliz.  C.  11,  S.  16,  "All  leases, 
bonds,  promises  and  covenants  of  and  concerning  benefices 
and  ecclesiastical  livings  with  cure,  to  be  made  by  any 
curate,  shall  be  of  no  other  or  better  force,  validity  or  con- 
tinuance, than  if  the  same  had  been  made  by  the  beneficed 
person  himself  that  demised  or  shall  demise  the  same  to  any 
such  curate  "  (/). 

Houses  and  grounds  in  towns,  &c.  —  By  14  Kliz.  C.  11,  S.  17, 
the  13  Eliz.  c.  10,  shall  not  e.Ktend  to  any  grant,  assurance 

(«)  Uac.  Abr.  tit.  Leases  (I.  O.).  217;    Doc   d.  Pennington  i-.  Taniere, 

(/j)  Goodtitie  d.  Claries    v.    Funu-  ]'2  Q.  15.  iM>8  ;  Pennington  c.  Cardaie, 

can,  2   Doiijj.  505  ;  Doe  d.  Tenny.son  .'J  II.  &.  N.  (i5(),  (i(l(5. 

r.  Lord  Yarborough,  1    Ring.  24  ;  Up.  (r)  Magdalen    Hospital   v.   Knotts, 

of  Hereford  v.  Scorj,  Cro.  Kiiz.  874.  4(5  L.  J.,  Cii.   14'J  ;    L.   U.,  5  Ch.  D. 

('•)  Doe  d.  Bryan  i-.  IJancks,  4  R.  &  175. 

A.  407,  Bayiey,  J.  (/)  Doe  d.  Ricliardson  i-.  Tiioinas, 

{d)  Edwards    v.   Diek,  4    B.    &  A.  0  A.  &  K.  550. 

34 


Cii.  I.  S.  14.]  ECCLESIASTICAL   LEASES.  *21 

or  lease  of  any  houses  belonging  to  any  the  persons,  or  bodies 
politic  or  corporate  aforesaid,  nor  to  any  ground  to  such 
houses  appertaining,  which  houses  are  situate  in  any  city, 
borough,  town  corporate,  or  market  town,  or  the  suburbs 
of  any  of  them  ;  but  all  such  houses  and  grounds  may  be 
granted,  demised  and  assured  as  by  the  laws  of  this  realm, 
and  the  several  statutes  of  the  said  colleges,  cathedral 
churches  and  hospitals,  they  lawfully  might  have  been  be- 
fore the  making  of  the  said  statute,  or  lawfully  might  be  if 
the  said  statute  were  not ,  so  always  that  such  house  be  not 
the  capital  or  dwelling-house  used  for  the  habitation  of  the 
persons  above  said,  nor  have  ground  to  the  same  belonging 
above  the  quantity  of  ten  acres,  anything  in  the  said  act  to 
the  contrary  notwithstanding. 

Not  for  more  than  forty  years. —  Sect.  19  provides,  "That 
no  lease  shall  be  permitted  to  be  made  by  force  of  this  act, 
in  reversion,  nor  Avitliout  reserving  the  accustomed  yearly 
rent  at  the  least,  nor  without  charging  the  lessee  with  the 
reparations  (,^),  nor  for  longer  term  than  forty  years  at  the 
most." 

Covenant  to  put  in  lives.  —  A  coyenant  by  the  trustees  of 
a  charity  to  put  in  a  new  life  so  often  as  one  of  three  lives 
drops,  in  the  case  of  a  lease  for  more  than  forty 
*  years,  will  not  be  enforced  (A).  But  a  lease  by  a  [*21] 
vicar  of  messuages  in  the  city  of  London  —  of  which 
the  dAvelling-house  used  for  the  habitation  of  the  vicar  formed 
no  part,  and  the  ground  demised  was  less  than  ten  acres  — 
for  twenty-one  years  from  the  date  of  the  lease,  made  at  a 
time  when  a  former  lease  of  the  said  premises  for  forty  years 
was  in  being,  but  within  three  years  of  its  expiration,  was 


{g)  Crane  v.  Taylor,  Hob.  269.  ers  having  vetoed  the  lease  under  18 

(h)  Moore  v.  Clench,  L.  R.,  1  Cli.  &  19  Vict.  c.  124,  s.  29,  the  governors 

D.  447  ;  45  L.  J.,  Ch.  80  ;  34  L.  T.  13 ;  refused  to  put  in  another  life.   Jessel, 

24  W.  R.  169.     Here  the  lease  was  in  M.R.,  in  refusing  specific  performance 

1836  for  40  years  and  a  month,  with  of  the  covenant  to  put  in  the  life,  ex- 

a  concurrent  term    of   99   years    for  pressed  an  opinion  that  the  Charity 

three  lives,  and   a   covenant    during  Commissioners  could  not  have  vetoed 

the  40  years  and  the  month  to  add  a  the  renewal  of  the  lease  if  it  had  been 

life.     In  1857  a  new  life  was  put  in,  originally  valid, 
but  in  1872  the  Charity  Commission- 

35 


*21  BY   WHOM   TERMS   GRANTED.  [Ch.  I.  S.  14. 

held  not  void  under  either  of  the  restraining  acts  of  Eliza- 
beth (i). 

Corn  rents,  —  B}^  18  Eliz.  c.  6,  s.  1,  in  college  leases  one- 
third  part  at  the  least  of  the  old  rent  must  be  reserved  and 
paid  in  corn  (wheat  or  malt)  for  the  said  colleges,  at  certain 
rates  therein  mentioned ;  and  see  39  &  40  Geo.  3,  c.  41,  s.  7. 

Concurrent  leases.  —  The  18  Eliz.  c.  11,  after  reciting  the 
13  Eliz.  c.  10,  s.  3,  enacts  (s.  2),  that  all  leases  of  any  eccle- 
siastical, spiritual  or  collegiate  lands,  tenements  or  heredita- 
ments, whereof  any  former  lease  for  years  is  in  being,  and 
not  to  be  expired,  surrendered  or  ended  within  three  years 
next  after  the  making  of  such  new  lease,  shall  be  void,  as 
well  as  all  bonds  and  covenants  for  the  renewal  of  the  same. 
And  by  43  Eliz.  c.  9,  s.  8,  all  payments  had  for  the  intent  to 
have  and  enjoy  any  lease  contrary  to  these  statutes  shall  be 
void  in  the  same  manner  as  bonds  and  covenants  are  ap]3ointed 
to  be. 

Leases  of  Fifield  Manor.  —  By  18  Eliz.  C.  11,  ss.  5,  fi,  Saint 
John's  College,  Oxford,  may  grant  leases  of  the  manor  of 
Fifield,  in  Oxfordshire,  to  the  kindred  of  their  founder,  Sir 
Thomas  White,  for  ninety-nine  years. 

Leases  by  hospitals,  &o.  —  By  39  Eliz.  c.  5,  s.  6,  all  leases, 
grants,  &c.,  made  by  any  corporation  founded  in  pursuance 
of  that  act  as  a  hospital,  maison  de  Dieu,  abiding  place  or 
house  of  correction,  exceeding  twenty-one  j'^ears  in  possession, 
or  whereupon  the  accustomed  yearly  rent  or  more  by  tlie 
greater  i)art  of  twenty  years  next  before  the  making  of  such 
lease  shall  not  be  reserved  and  yearly  payable,  shall  be 
void  (/■). 

Ancient  offices  not  within  the  statutes.  —  The  grants  of 
ancient  offices  belonging  to  ecclesiastical  persons  are  not 
within  any  of  these  acts,  and  therefore  stand  as  at  common 

law(0. 

By  39  k  40  (ieo.  3,  <•.  41,  whcn-e  any  i)art  of  the  possessions 
of  any  arc]il)isliop,  1)isli()p,  master  and  fellows,  dean  and  chap- 

(j)  Vivian    r.    Blombcrfj,  .3    Bing.  antr,   18,  oxi)Iaiiioil  by  14  Eliz.  c.   14. 

N.    C.  ;{11  ;     :]    Scott,  081 ;  7     Sim.  (/)  Hp.  of  Salisbury's  case,  10  Co. 

648.  H.  (JI  a. 

(/•)  And    see    l.'J    Kli/..   c  10,  .s.  ?,, 

3(1 


Cu.  I.  S.  14.]  ECCLESIASTICAL  LEASES.  *22 

ter,  master  or  guardian  of  any  hospital,  or  any  other  person 
or  persons,  or  body  or  bodies  politic  or  corporate,  having  any 
ecclesiastical  liviny,  shall  be  demised  by  several  leases 
which  was  formerly  demised  by  one  lease  *  under  one  [*22] 
rent ;  or  where  a  part  shall  be  demised  for  less  than 
the  ancient  rent,  and  the  residue  shall  be  retained  in  the  pos- 
session of  the  lessor ;  the  several  rents  reserved  on  the  separate 
demises  of  the  specific  parts  shall  be  taken  to  be  the  ancient 
rents  within  the  meaning  of  the  statutes  22  Hen.  8,  c.  28 ;  1 
Eliz.  c.  19 ;  13  Eliz.  c.  10 ;  and  14  Eliz.  c.  11 ;  and  are  to  be 
equitably  apportioned  in  manner  therein  provided  (ni). 

Land-tax  redeemed  by  a  bishop.  —  By  the  Land-Tax  Re- 
demption Act  (42  Geo.  3,  c.  116),  ss.  69,  83,  88,  the  land- 
tax,  when  redeemed  by  any  bishop,  shall  be  considered  as 
yearly  rent,  and  shall  be  reserved  in  all  demises.  A  lease 
by  a  bishop  in  which  such  land-tax  is  not  expressly  reserved 
as  rent  is  voidable  by  the  successor  (w). 

Renewed  leases,  &c.  —  By  6  Will.  4,  c.  20,  "  no  archbishop 
or  bishop,  ecclesiastical  corporation,  sole  or  aggregate,  digni- 
tary, canon,  or  prebendary,  or  other  spiritual  person,  nor  any 
master  or  guardian  of  any  hospital,  shall  grant  any  new  lease 
of  parcel,  &c.,  by  way  of  renewal  of  any  lease  which  shall 
have  been  previously  granted  of  the  same  for  tivo  or  more 
lives,  until  one  or  more  of  the  persons  for  whose  lives  such 
lease  shall  have  been  so  made  shall  die,  and  then  only  for 
the  surviving  lives  or  life  and  for  such  new  life  or  lives  as, 
together  with  the  life  or  lives  of  such  survivor  or  survivors, 
shall  make  up  the  number  of  lives,  not  exceeding  three  in 
the  whole,  for  which  such  lease  shall  have  been  so  made  as 
aforesaid ;  and  where  any  such  lease  shall  have  been  granted 
for  forty  years,  no  such  archbishop,  &c.,  shall  grant  anj'  new 
lease  by  way  of  renewal  of  the  same  until  fourteen  years  of 
such  lease  shall  have  expired ;  and  where  any  such  lease 
shall  have  been  made  as  liforesaid /o?-  thirty  years,  no  such 
archbishoj),  &c.,  shall  grant  any  new  lease  by  way  of  renewal 
of  the  same  until  ten  years  of  such  lease  shall  have  expired ; 

(m)  Sect.  2  et  seq.  the  redemption  of  land-tax,  see  War- 

(7i)  Doe  d.  Murray  v.  Bridges,  1  B.       ner  v.  Potchett,  o  B.  &  Ad.  921. 
&  A.  847.     As  to  the  sale  of  land  for 

37 


*23  BY   WHOM  TERMS    GRANTED.  [Cri.  I.  S.  14. 

and  where  any  such  lease  shall  have  been  granted /or  twenty- 
one  years,  no  such  archbishop,  &c.,  shall  grant  any  new  lease 
by  way  of  renewal  of  the  same  or  (in  the  case  of  archbishops 
or  bishops)  concurrently  therewith  until  seven  years  of  such 
lease  shall  have  expired ;  and  where  any  such  lease  shall 
have  been  granted  for  years,  no  such  archbishop,  &c.,  shall 
grant  any  lease  by  way  of  renewal  of  the  same  or  otherwise 
for  any  life  or  lives ;  any  law,  statute  or  custom  to  the  con- 
trary notwithstanding." 

Previous  lease.  —  By  sect.  2,  the  new  lease  must  contain  a 
recital  or  statement  of  the  previous  lease,  &c. ;  but  by  6  &  7 
Will.  4,  c.  64,  no  such  renewed  lease  shall  be  void  "  by  rea- 
son only  of  its  not  containing  such  recital  or  statement." 

Short  renewal.  —  By  sect.  3,  where  it  has  been  the 
[*23]  usual  practice  to  renew  leases  for  *  forty,  thirty  or 
twenty-one  years  respectively  at  shorter  periods  than 
fourteen,  ten  or  seven  years  respectively,  and  that  practice  is 
certified  as  in  this  section  provided,  such  leases  may  be 
renewed  at  shorter  intervals,  according  to  the  practice  so 
certified. 

Special  acts.  —  Sect.  6  provides,  that  nothing  in  this  act 
contained  shall  prevent  any  grants  or  renewal  of  leases 
which  may  have  been  authorized  by  acts  of  parliament  spe- 
cially relating  to  the  particular  estates  demised  by  such 
leases  (o). 

Confirmation  only.  —  By  sect.  7,  renewed  leases,  by  way  of 
confirmation  only  for  the  same  life  or  term,  may  be  granted. 

By  sect.  8,  no  lease  not  authorized  by  the  laws  and  stat- 
utes now  in  force  "shall  be  rendered  valid  by  anything  in 
this  act  contained." 

By  sect.  9,  leases  "  contrary  to  this  act  shall  be  void ; "  but 
this  was  qualified  as  to  sect.  2  by  6  &  7  Will.  4,  c.  64,  as 
before  mentioned. 

(b)  The  Acts  of  Queen  Victoria. 

Lease  of  parsonage.  —  By  1  &  2  Vict.  C.  106,  s.  59,  "any 
agreement  made  for  the  letting  of  the  house  of  residence,  or 

(o)  See  18  Eliz.  c.  11,  ante,  21. 
38 


Ch.  I.  S.  14.]  ECCLESTASTICAL   LEASES.  *24 

the  building,  gardens,  orcjhards,  or  appurtenances  necessary 
for  the  convenient  occupation  of  the  same,  belonging  to  any 
benefice,  to  which  house  of  residence  any  spiritual  person 
may  be  required,  by  order  of  the  bishop  as  aforesaid,  to  pro- 
ceed and  to  reside  therein,  or  which  may  be  assigned  or 
appointed  as  a  residence  to  any  curate  by  the  bishop,  shall 
be  made  in  writing,  and  shall  eontain  a  condition  for  avoidinu 
the  same,  upon  a  copy  of  such  order,  assignment  or  appoint- 
ment being  served  upon  the  occupier  thereof  or  left  at  the 
house,  and  otherwise  shall  be  null  and  void."  And  a  sum- 
mary remedy  is  provided  for  enforcing  such  condition. 

Leases  for  14  years.  —  By  stat.  5  &  6  Vict.  C.  27,  which 
applies  to  farming  leases,  in  cumbents  of  ecclesiastical  bene- 
fices (jo)  may,  with  the  conse7it  of  the  bishop  and  patron, 
lease  lands  belonging  to  their  benefices,  except  the  parson- 
age house  and  offices  and  ten  acres  of  glebe  situate  most 
convenient  to  be  occupied  therewith,  for  any  term  not  exceed- 
ing fourteen  years,  subject  to  the  restrictions  and  conditions 
imposed  upon  them  by  the  said  act  for  the  benefit  and  pro- 
tection of  their  successors. 

Leases  for  20  years.  —  But  it  is  provided  that  "  the  term  to 
be  granted  by  any  such  lease  as  aforesaid  may  be  tiventy 
years  in  any  case  where  the  lessee  shall  covenant  thereby  to 
adopt  and  use  any  mode  or  system  of  cultivation  more  ex- 
pensive than  the  usual  course,  or  to  drain  or  subdivide,  or 
embank  and  warp  at  his  expense  any  part  of  the  de- 
mised premises,  *  or  to  erect,  at  his  own  expense,  on  [*24] 
the  said  premises  any  buildings,  or  to  repair  in  a 
more  expensive  manner  and  at  a  greater  expense  than  is 
usually  required  of  lessees  of  farms  an}^  buildings  on  the 
demised  premises,  or  in  any  other  manner  to  improve  at  his 
expense  the  demised  premises  or  any  part  thereof"  (5').  No 
lease  granted  under  this  act  can  be  surrendered  without  the 
consent  of  the  bishop  and  patron  (r).  The  act  itself  must 
be  referred  to  for  details.     At  common  law  a  lease  granted 

(p)  By  s.  15,  "the  word  '  benefice'  trict    chapelry ;     the    incumbent    of 

shall  be   construed    to    comprehend  which   in   right   thereof    shall   be   a 

every    rectory,    vicaragre,    perpetual  corporation  sole." 
curacy,    donative,     endowed     public  (7)  Sect.  1. 

chapel,  parochial  chapelry,  and   dis-  (r)  Sect.  5. 

39 


*24  BY  WHOM  TERMS   GRANTED.  [Ch.  I.  S.  14. 

by  the  incumbent  of  a  benefice,  in  whatever  terms  it  was 
framed,  operated  as  a  demise  so  long  only  as  he  continued 
incumbent,  for  he  could  not  pass  a  greater  interest  (s). 

Consents  as  evidence.  —  By  sect.  4,  "  the  execution  b}^  the 
bishop  and  patron  whose  consents  are  hereby  made  requisite 
of  any  lease  to  be  granted  under  the  authority  of  this  act 
shall  be  conclusive  evidence  that  the  lease  does  not  comprise 
any  lands  which  ought  not  to  be  leased  under  the  provisions 
of  this  act,  and  that  a  proper  portion  of  the  glebe  lands  re- 
mains unleased,  and  that  the  rent  reserved  by  such  lease  is 
the  best  and  most  improved  rent  that  could  be  reasonably 
gotten  for  the  lands  and  hereditaments  comprised  therein  at 
the  time  of  granting  such  lease,  and  that  all  the  covenants 
contained  in  such  lease  are  proper  covenants." 

Validity  of  irregular  lease.  —  In  consequence  of  sect.  4,  a 
lease  which  is  executed  by  the  patron  and  ordinary  as  well 
as  the  incumbent  may  be  valid  in  favour  of  the  lessee,  al- 
though it  does  not  strictly  comply  with  all  the  requisitions 
of  the  statute  :  for  instance,  where  it  reverses  the  rent  half- 
yearly  instead  of  quarterly  (Q.  Quod  fieri  non  debit  factum 
valet. 

The  act  does  not  repeal.  —  The  above  act  does  not  repeal 
the  13  Eliz.  c.  10 :  and  therefore  a  rector,  with  the  consent 
of  the  patron  and  bishop,  may  demise  his  glebe  under  the 
powers  of  the  common  law,  subject  to  the  provisions  of  the 
statute  of  Elizabeth,  though  the  lease  may  not  be  conform- 
able to  the  restrictions  imposed  by  the  statute  of  Victoria  (w). 

Ecclesiastical  Leasing  Act. —  By  "  The  Ecclesiastical  Leasing 
Act,  1842  "  (x),  as  amended  by  "  The  Ecclesiastical  Leasing 
Act,  1858"  (^),  any  ecclesiastical  corporation,  aggregate  or 


(s)  Wheeler  r.  Hcydon,  Cro.  Jac.  (h)  Jenkins  v.  Green,  28  Beav.  87. 

328 ;  Price  v.  Williams,  1  M.  &  W.  G ;  (x)  6  &  G  Vict.  c.  108. 

Doe  d.  Kerby  v.  Carter,  Ily.  &  Moo.  (.'/)  21  &  22  Vict.  c.  57.     The  Act 

237  ;  Doe  d.  Tennyson  v.  Lord  Yar-  12  &  13  Vict.  c.  2G,  for  granting  relief 

borough,!  King.  24 ;  Cole  Ejec.  C02.  against  defects  in  leases  under  pow- 

(t)  Jenkins  v.  Green,  27  Beav.  440;  ers,  does  not  (see  sect.  7)   apply  to 

but  the  Acts  24  &  25  Vict.  c.  105,  and  ecclesiastical   leases,  or  to   leases  of 

25  &  20  Vict.  c.  52,  post,  seem,  to  a  the  possessions  of  any  college,  hospi- 

great  cxtiiit,  to  get  rid  of  the  elTcct  tal,  or  charitable  foundation. 
of  this  decision. 

40 


Cii.  I.  S.  14.]  ECCLESIASTICAL  LEASES.  *25 

sole,  except  any  college  (z)  or  corporation  of  vicars  choral, 
priest  vicars,  senior  vicars,  custos  and  vicars  or  minor  canons, 
and  except  also  any  ecclesiastical  hospital,  or  the  master 
thereof,  may,  ivith  the  consent  of  the  Ecclesiastical 
Comjnissioners  for  England^  and  *  Avith  such  further  [*25] 
consents  as  in  the  said  acts  mentioned,  grant  build- 
ing and  repairing  leases  for  any  term  not  exceeding  ninety- 
nine  years  :  also  leases  of  running  water  and  way-leaves,  and 
other  rights  and  easements,  for  any  term  not  exceeding  sixty 
years:  also  mining  leases,  for  any  term  not  exceeding  sixty 
years :  all  of  which  leases  must  be  made  subject  to  certain 
restrictions  and  conditions  for  the  protection  and  benefit  of 
their  successors.  The  acts  must  be  referred  to  for  details, 
but  it  may  be  mentioned  here  that  sect.  1  of  the  act  of  1842 
expressly  authorizes  a  lease  "  with  or  without  a  proviso  that 
no  breach  of  covenant  (except  the  covenant  for  payment  of 
rent  and  other  such  covenants,  if  any,  as  may  agree  to  be 
excepted)  shall  occasion  any  forfeiture  unless  judgment  shall 
have  been  obtained  in  an  action  for  such  bi'each  of  covenant, 
nor  unless  the  damages  and  costs  to  be  recovered  in  such 
action  shall  have  remained  unpaid  for  the  space  of  three 
calendar  months  after  judgment  shall  have  been  obtained  in 
such  action."  The  execution  of  any  such  lease  by  the  neces- 
sary consenting  parties  is  to  be  conclusive  evidence  that  the 
requisites  of  the  above  acts  have  been  complied  with.  Under 
sect.  30  of  the  first-mentioned  act  they  were  prohibited  from 
taking  any  premium,  fine  or  foregif t ;  but  that  was  rej)ealed 
by  21  &  22  Vict.  c.  57,  ss.  1,  2. 

Previous  powers  not  interfered  with.  —  By  sect.  8  of  the 
first-mentioned  act,  "nothing  in  this  act  contained  shall 
restrain  any  corporation  hereby  empowered  to  grant  leases 
and  make  grants  as  aforesaid  from  granting  any  leases  or 
making  any  grants,  whether  by  way  of  renewal  or  otherwise, 
which  such  corporation  might  have  lawfully  and  rightfully 
granted  or  made  either  under  the  provisions  of  any  public  (a) 
or  private  act  of  parliament,  or  under  any  other  authority, 
or  in  any  manner  whatsoever,  in  case  this  act  had  not  been 

(2)  As   to   leases   by  colleges,  see  (a)  See  6  Will.  4,  c.  20,  ante,  22. 

post.  Sect.  15. 

41 


*26  BY   WHOM   TERMS   GRANTED.  [Ch.  I.  S.  14. 

passed,  or  from  the  taking  of  any  fine,  premium  or  foregift 
from  the  lessees  in  any  renewed  or  new  leases  named  or  to 
be  named,  or  from  their  underlessees,  or  from  any  other 
persons  having  or  claiming  an  interest  in  any  such  renewal, 
for  any  such  renewed  or  new  leases,  save  and  except  that  in 
every  lease  (other  than  any  lease  granted  under  the  powers 
of  this  act)  which  shall  be  granted  by  any  such  corporation 
as  aforesaid,  of  any  lands  or  houses  which  shall  have  been 
leased  for  building  or  repairing  purposes  under  any  of  the 
powers  of  this  act,  there  shall  be  reserved  the  best  improved 
rent,  payable  half-yearly  or  oftener,  which  can  be  obtained 
for  the  same,  without  taking  any  fine,  premium  or  foregift, 
or  anything  in  the  nature  of  a  fine,  premium  or  foregift,  for 
making  or  granting  the  same." 

By  "The  Ecclesiastical  Leasing  Act,  1858"  (21  &  22 
Vict.  c.  57),  s.  1,  "  in  any  case  in  which  it  shall  be 
[*26]  made  to  appear  to  the  *  satisfaction  of  the  ecclesias- 
tical commissioners  for  England  that  all  or  any  part 
of  the  lands,  houses,  mines,  minerals  or  other  property  of  or 
belonging  to  any  ecclesiastical  corporation  which  are  by  the 
5  &  6  Vict.  c.  108,  authorized  to  be  leased,  might  to  the  per- 
manent advantage  of  the  estate  or  endowments  belonging  to 
such  corporation  be  leased  in  any  manner^  or  be  sold,  ex- 
changed or  otherwise  disposed  of,  it  shall  be  lawful  for  any 
ecclesiastical  corporation,  aggregate  or  sole,  except  as  in  the 
said  act  is  excepted^  from  time  to  time,  with  such  consents  as 
in  the  said  recited  act  mentioned,  and  with  the  approval  of 
the  said  commissioners,  to  be  testified  by  deed  under  their 
common  seal,  to  lease  all  or  any  part  or  parts  of  the  lands, 
houses,  mines,  minerals  or  other  property  belonging  to  such 
corporation,  whether  the  same  shall  or  shall  not  have  been 
previously  leased  or  dealt  with  under  the  provisions  of  the 
said  recited  act,  or  of  this  act,  and  either  in  consideration  or 
partly  in  consideration  of  premiums  or  not,  or  for  such  other 
considerations,  and  for  such  term  or  terms,  and  luidcr  and 
subject  to  sucli  covenants,  stipulations,  conditions  and  agree- 
ments on  the  part  of  the  lessee  or  lessees,  and  generally  in 
such  manner  as  the  said  commissioners  shall  under  the  cir- 
cumstances of  each  case  think  proper  and  advisable." 

42 


Ch.  I.  S.  14]  ECCLESIASTICAL   LEASES.  *27 

Episcopal  and  Capitular  Estates  Acts.  —  By  14  &  15  Vict, 
c.  104,  intituled  "An  Act  to  Facilitate  the  Management  and 
Improvement  of  Episcopal  and  Capitular  Estates  in  Eng- 
land "  (i),  ecclesiastical  corporations,  sole  or  aggregate,  with 
the  approval  in  writing  of  the  Church  Estate  Commissioners, 
may  sell,  enfranchise  or  exchange  their  church  lands,  or  pur- 
chase the  interest  of  their  lessees.  And  by  sect.  9,  "no  lease 
of  any  lands  purchased  or  acquired,  or  in  which  the  estate 
or  interest  of  a  lessee,  or  of  a  holder  of  copyhold  or  cus- 
tomary land,  is  purchased  or  acquired,  by  any  ecclesiastical 
corporation  under  this  act,  shall,  except  as  hereinafter  pro- 
vided, be  granted  by  such  ecclesiastical  corporation,  other- 
wise than  from  year  to  year,  or  for  a  term  of  years  in  posses- 
sion 7iot  exceeding  fourteen  years,  at  the  best  annual  rent  that 
can  be  reasonably  gotten,  without  fine,  the  lessee  not  to  be 
made  dispunishable  for  waste,  or  exempted  from  liability  in 
respect  of  waste :  provided  always,  that  it  shall  be  lawful 
for  such  ecclesiastical  corporation,  with  the  approval  of  the 
Church  Estate  Commissioners,  from  time  to  time  to  grant 
mining  or  building  leases,"  as  therein  mentioned  (c). 

Leases  by  bishops.  —  By  the  23  &  24  Vict.  c.  124,  s.  8, 
"no  lands  assigned  or  secured  as  the  endowment  of  any  see 
under  this  act  shall  be  granted  by  the  archbishop  or  bishop 
otherwise  th-an  from  year  to  year,  or  for  a  term  of 
*  years  in  possession  not  exceeding  tiventy-one  years,  [*27] 
at  the  best  annual  rent  that  can  be  reasonably  gotten, 
without  fine,  the  lessee  not  to  be  made  dispunishable  for 
waste,  or  exempted  from  liability  in  respect  of  waste ;  and 
so  that  in  every  such  lease  such  or  the  like  covenants,  con- 
ditions and  reservations  be  entered  into,  reserved  or  contained 
with  or  for  the  benefit  of  the  archbishop  or  bishop  and  his 
successors,  as  under  sect.  1  of  the  act  b  &j  Q  Vict.  c.  27  (for 
better  enabling  the  incumbents  of  ecclesiastical  benefices  to 
demise   the  lands  belonging  to  their  benefices  on  farming 

(h)  A  temporary  act,  amended  by  ing  Laws  Continuance  Act,  1880  (43 

17  &  18  Vict.  c.  116  ;  22  &  28  Vict.  c.  &  44  Vict.  c.  48),  until  the  31st  De- 

46;    23  &  24  Vict.  c.   124;  31   &  32  cember,  1881. 

Vict.  c.  114,  s.  10;  and  continued  by  (c)  See     also     the     Ecclesiastical 

numerous    Expiring    Laws    Continu-  Leasing    Acts,    1842,    1858,  ante,  23, 

ance  Act;  and  lastly,  by  the  Expir-  24. 

43 


*27  BY  WHOM  TERMS   GRAi^TED.  [Ch.  I.  S.  14. 

leases),  are  to  be  entered  into,  reserved  or  contained  in  a 
lease  granted  under  that  enactment  to  or  for  the  benefit  of 
the  incumbent  and  his  successors,  or  as  near  thereto  as  the 
circumstances  of  the  case  will  permit ;  but  where  under  the 
said  section  of  the  last-mentioned  act  any  consents  are  pro- 
vided for  or  required,  the  consent  only  of  the  archbishop  or 
bishop  for  the  time  being  shall  be  requisite:  provided  always, 
that  it  shall  be  lawful  for  the  archbishop  or  bishop,  with  the 
approval  of  the  estate  committee  of  the  ecclesiastical  com- 
missioners, testified  under  the  common  seal  of  the  said  com- 
missioners, which  the  said  committee  are  hereby  empowered 
to  afiix  to  any  lease  for  this  purpose,  from  time  to  time  to 
grant  mining  or  building  or  other  leases  of  any  such  lands 
for  such  periods,  for  stich  considerations,  upon  such  terms, 
and  generally  in  such  manner  as  such  committee  under  the 
circumstances  of  each  case  ma}^  think  fit;  and  it  shall  be 
lawful  for  such  committee  to  require  that  any  portion  of  the 
rent  reserved  on  any  such  lease  shall  be  payable  to  the  said 
ecclesiastical  commissioners." 

Ecclesiastical  commissioners.  —  By  sect.  9,  "  the  estates 
committee  shall  cause  the  property  assigned  as  an  endow- 
ment for  any  see  as  aforesaid  to  be  inspected  so  often  as 
they  think  fit,  and  shall  cause  notice  in  Avriting  of  all  dilapi- 
dations or  want  of  repair  found  in  such  inspection,  and  of 
the  repairs  or  works  necessary  for  remedying  the  same,  to 
be  given  to  the  archbishop  or  bishop  of  such  see,  and  such 
archbishop  or  bishop  shall  forthwith  do  or  cause  to  be  done 
at  his  or  their  own  expense,  or  at  the  expense  of  his  or  their 
lessees  or  tenants  (as  the  case  may  require),  the  repairs  or 
works  mentioned  in  such  notice ;  and  if  any  difference  arise 
between  such  archbishop  or  bishop  and  the  estates  committee 
with  regard  to  the  condition  of  such  property,  or  the  repairs 
or  works  refjuired  by  the  estates  committee,  the  matter  in 
difference  shall  be  referred  to  arbitration  as  hereinafter 
provided." 

By  sect.  11,  "the  estates  committee  shall,  when  required 
by  any  archbishop  or  l)isliop  to  wiiom  lands  may  have  been 
assigned  as  an  endowment  under  this  act,  undertake  the 
management  of  such  lands  and  receive  the  rents  and  profits 

44 


Ch.  I.  S.  14.]  ECCLESIASTICAL   LEASES.  *28 

thereof  during  the  incumbency  of  tlie  archbishop  or  bishop; 
and  in  every  such  case  as  aforesaid  the  estates 
*  committee,  during  their  management,  may  grant  [*28] 
all  such  leases  as  might  liave  been  granted  by  such 
archbiohop  or  bishop  if  the  lands  had  continued  under  liis 
or  their  management,  and  may  with  the  approval  of  such 
archbishop  or  bishop  grant  such  other  leases  as  might  have 
been  granted  by  him  or  them  with  the  approval  of  tlie  estates 
committee ;  and  the  commissioners  shall,  during  the  time 
such  lands  are  under  the  management  of  the  said  estates  com- 
mittee, pay  to  such  archbishop  or  bishop  the  annual  income 
to  secure  which  the  lands  may  have  been  assigned." 

By  sect.  31,  rights  of  renewal  and  other  obligations  under 
special  acts,  &c.,.  preserved.,  notwithstanding  anything  done 
under  sect.  10. 

Leases  of  copyholds.  —  By  24  &  25  Vict.  C.  105,  intituled 
"An  Act  to  Prevent  the  Future  Grant  by  Cop}^  of  Court 
Roll  and  certain  Leases  of  Lands  and  Hereditaments  in 
England  belonging  to  Ecclesiastical  Benefices "  (cZ),  after 
recitinor  "  that  there  are  in  England  certain  ecclesiastical 
benefices  to  which  belong  manors,  lands,  tenements  and 
hereditaments,  which  by  custom  or  otherwise,  the  rectors, 
vicars,  perpetual  curates  or  incumbents  thereof  have  power 
to  grant  and  lease  out  for  lives  and  long  terms  of  years,  and 
such  grants  have  been  made  by  them  at  nominal  annual 
rents,  to  the  prejudice  of  their  successors,  and  it  is  expedient 
to  determine  and  put  an  end  to  the  power  to  make  such 
grants  ;  "  it  is  enacted  as  follows :  — 

Pines  prohibited.  —  By  sect.  1,  "  it  shall  not  be  lawful  for 
any  prebendary  of  any  prebend,  not  being  a  prebend  of  any 
cathedral  or  collegiate  church,  rector,  vicar,  perpetual  curate 
or  incumbent,  wlio  after  the  passing  of  this  act  may  become 
possessed  of  or  entitled  to  any  manors,  lands,  tenements  or 
hereditaments  belonging  to  any  ecclesiastical  benefice  in 
England  to  make  any  grant  by  copy  of  court  roll  or  lease  of 
any  such  manors,  lands,  tenements,  or  hereditaments  in  con- 

{d)  Amendod  by  25  &  26  Vict.  c.       tended   to   cop^'holds   except   5   &  G 
52,  post,    20.     None    of   the    previous       Vict.  c.  27,  ante,  23. 
Disabling    or    Restraining    Acts    ex- 

45 


*29  BY   WHOM   TERMS   GRANTED.  [Ch.  I.  S.  14. 

sideration  of  any  fine,  premium  or  foregift,  but  the  same 
may,  by  any  rector,  vicar,  perpetual  curate  or  incumbent 
appointed  after  the  passing  of  this  act,  be  leased^  sold,  ex- 
changed or  enfranchised,  or  disposed  of  under  the  provisions 
of  5  &  6  Vict.  c.  27 ;  5  &  6  Vict.  c.  106,  and  21  «&  22  Vict. 
c.  57,  or  such  of  the  provisions  of  such  acts  respectively  as 
are  now  in  force." 

By  sect.  2,  "  nothing  herein  contained  shall  interfere  with 
or  prevent  the  right  and  power  of  any  such  present  preben- 
dary, rector,  vicar,  perpetual  curate  or  incumbent,  during 
his  incumbency,  to  make  any  grant  by  copy  of  court  roll 
or  lease  wliich  he  might  lawfully  have  made  before  the  pass- 
ing of  this  act,  and  nothing  herein  contained  shall  prejudice 

or  affect  any  grant  heretofore  madq  by  such  preben- 
[*29]     dary,  rector,  *  vicar,  perpetual  curate  or  incumbent, 

or  any  right  of  renewal  or  tenant  right,  if  any  such 
there  be,  in  any  manors,  lands,  tenements,  or  hereditaments 
held  under  any  such  grant  or  under  any  lease,  nor  shall  this 
act  prejudice  or  affect  any  power  of  sale,  exchange  or  en- 
franchisement existing  under  any  statute  now  in  force,  or 
any  present  or  future  right  of  admission  of  any  person  to 
any  copyhold  tenement  according  to  the  custom  of  the 
manor  of  which  it  is  holden,  and  to  which  such  person  may 
be  legally  entitled." 

Powers  to  incumbents.  —  By  sect.  3,  notwithstanding  any- 
thing contained  in  the  lltli  section  of  an  act  14  »&  15  Vict. 
c.  101,  any  rector,  vicar,  perpetual  curate  or  incumbent  shall 
have  sucli  and  the  same  powers  of  sale,  exchange  and 
enfrancliisement  as  are  possessed  by  an  ecclesiastical  corpo- 
ration, sole  or  aggregate,  under  any  act  now  in  force ;  and 
the  provisions  of  an  act  23  &  24  Vict.  c.  124,  shall,  so  far  as 
the  same  relate  to  powers  for  the  raising  or  application  of 
money  by  trustees,  allowances  to  lessees,  arbitration,  valua- 
tion, rate  of  interest,  apportionment  of  rent  and  substitution 
of  titles  on  exchange,  be  applied,  mutatis  mutandis^  to  sales, 
exchanges  or  enfranchisements  of  any  manors,  lands,  tene- 
ments or  lieroditamcnts  in  tliis  act  comprised ;  but  the  pro- 
ceeds of  any  such  sales  or  enfranchisements  and  any  monies 
received  by  way  of  equality  of  exchange,  shall  be  applied 

46 


Ch.  I.  S.  15.]  UNIVERSITIES    AND    COLLEGES.  *30 

according  to  the  provisions  in  tliat  behalf  contained  in  the 
said  act  5  &  6  Vict.  c.  108,  and  in  the  said  act  21  &  22  Vict. 
c.  57. 

By  25  &  26  Vict.  c.  52,  the  prohibition  to  make  any  grant 
by  copy  of  court  roll  or  lease  contained  in  24  &  25  Vict.  c. 
105,  s.  1,  shall  not  only  extend  to  grants  made  in  considera- 
tion of  any  fine,  premium,  or  foregift ;  but  shall  also  extend 
to  all  grants  and  leases  made  for  a  longer  term  or  in  any 
other  way  than  according  to  the  provisions  of  the  several 
statutes  mentioned  in  sects.  1,  3  of  that  act. 

Leases  by  deans  and  chapters.  —  By  31  &  32  Vict.  C.  114,  S. 
9,  none  of  the  deans  and  chapters  mentioned  in  the  schedule 
to  31  &  32  Vict.  c.  10  [including  York,  Carlisle,  Peterborough, 
Chester,  Crloucester,  St.  Asaph,  Worcester,  Chichester,  Win- 
chester, Salishury,  Bristol,  Canterhunj,  Exeter,  Wells,  Roches- 
ter, St.  David's,  Llandajf,  and  Windsor~\,  and  no  dean  and 
chapter  after  makinf/  of  any  order  in  council  respectinrf  them, 
in  pursuance  of  this  act,  shall  demise  any  land  vested  in 
them,  othe]-\vise  than  from  year  to  year,  or  for  a  term  of 
years  in  possession  not  exceeding  twenty-one,  at  the  best 
annual  rent  that  can  be  reasonably  got  without  fine ;  and 
shall  not  make  the  lessee  dispunishable  for  or  exempt  from 
liability  in  respect  of  waste ;  and  in  every  such  lease  such 
or  the  like  covenants,  conditions  and  reservations  shall  be 
entered  into,  reserved  or  contained  with  or  for  the  benefit  of 
the  dean  and  chapter  and  their  successors,  as  under  sect.  1 
of  5  &  6  Vict.  c.  27,  are  to  be  entered  into,  reserved  or  con- 
tained with  or  for  the  benefit  of  the  lessor  and  his 
successors  in  *  a  lease  granted  under  that  section,  [*30] 
or  as  near  thereto  as  the  circumstances  admit  (e). 


Sect.  15.  —  By  Universities  and  Colleges. 

They  are  civil  corporations.  —  The  universities  of  Oxford 
and  Cambridge  are  regarded  as  civil  corporations  (/)  ;   so, 

(e)  This  enactment    was   intended  dropping  of  each  life,  upon  pa^'ment 

to  put  an  end  to  the  custom  wliich  of  a  large  fine,  vviiich  was  immediately 

had    long   prevailed    of  renewals    of  divided  between  the  members  for  the 

leases  by  deans  and  chapters  at  the  time  being. 
end  of  each  seven  years,  or  on  the  {/)  Parkinson's    case,    Carth.   93; 

47 


*30  BY    WHOM   TERMS    GRANTED.  [Ch.  I.  S.  15. 

of  course,  are  the  universities  of  Durham  and  London ;  and 
the  several  colleges  in  all  such  universities  respectively. 

Powers  of  leasing  at  common  law.  —  Like  other  corporations 
aggregate,  they  had  at  common  law  power  to  make  such 
leases  of  their  lands  as  they  thought  fit  under  their  common 
seal,  without  the  consent  or  confirmation  of  any  other  per- 
son (^),  provided  such  leases  were  in  conformity  with  their 
own  private  statutes,  charters  and  bye-laws. 

Restraining  or  Disabling  Acts.  —  But  as  SUch  power  was 
often  much  abused  by  the  members  for  the  time  being,  to 
the  great  prejudice  and  impoverishment  of  their  successors, 
they  have  been  restrained  by  divers  statutes  from  leasing 
their  lands,  and  especially  their  church  lyroperty^  except  for 
limited  terras  and  subject  to  certain  covenants  and  condi- 
tions intended  for  the  protection  and  benefit  of  their  suc- 
cessors (li). 

Oxford,  Cambridge,  Durham,  Eaton  and  Winchester.  —  Now, 
by  the  Universities  and  College  Estates  Act,  1858  and 
1860  (/),  the  universities  of  Oxford^  Cambridge^  and  Durham 
and  the  colleges  in  those  universities  respectively  (including 
Christ  Church,  Oxford),  and  also  the  colleges  at  Winchester 
and  Eaton^  have  extensive  powers  (without  the  consent  or 
control  of  the  Cop3^hold  Commissionei's  or  of  the  Church 
Estates  Commissioners,  or  of  any  other  person  or  persons 
whomsoever),  to  grant  leases  for  any  term  not  exceeding 
twenty-one  years^  subject  to  certain  restrictions  and  condi- 
tions for  the  protection  and  benefit  of  their  successors ;  also 
to  grant  building  and  repairing  leases  for  ninety-nine  years, 
and  to  enter  into  previous  contracts  for  any  such  leases  ; 
also  to  lease  running  water  and  Avay-leaves,  and  other  rights 
and  easements  for  sixty  years ;  also  to  grant  mining  leases 
for  sixty  years,  and  various  otlier  powers.  The  acts  must  be 
referred  to  for  details  (A-),  but  it   ma}-  be  mentioned   here 

U.  V.   V.-C.   of   Cambridge,    :j    Burr,  0  (manor  of  Fifiild)  ;  .",9  &  40  Geo.  3, 

1(550.  c.  41,rtH//',  sfc't.  14  (/))  ;  12  &  i;5  Vict. 

(7)  Co.  Lit.  44  a.  c.  20  (defective  execution  of  powers), 

(h)  See  1:5  Eliz.  c.  10,  s. .". ;    14  Kliz.  anic,  24,  note  (//). 
c.  11,  8.  17;  18  Eliz.  c.  6.  s.  1    (((.rn  (/)  21  &  22' Vict.  c.  44;   23  &  24 

rents)  ;  18  Eliz.  c.  11,  s.  2 ;  Id.,  ss.  5,  Vict.  c.  50. 

(/•)  See    Chit.    Stat.   vol.    iv.    tit. 

48 


Ch.  I.  S.  15.]  UNIVERSITIES    AND    COLLEGES.  *31 

• 

that  the  act  of  1858  authorizes  leases  containing  a 
proviso  against  *  forfeiture  without  prior  action  for     [*31] 
damages  similar  to  that  allowed  by  the  Ecclesiastical 
Leasing  Act,  1842,  previously  referred  to. 

Previous  poTvers  not  affected.  —  By  sect.  30  of  the  first- 
mentioned  act,  "  nothing  in  this  act  contained  shall  restrain 
the  said  universities  or  colleges  respectively  from  exercising 
any  powers  of  sale,  enfranchisement,  exchange,  purchase  or 
borrowing  monies,  or  from  granting  any  leases^  or  making 
any  grants,  whether  by  way  of  renewal  or  otherwise,  which 
the  said  universities,  or  any  such  college  as  aforesaid,  might 
have  exercised  or  granted  under  the  provisions  of  any  public 
or  private  act  of  parliament,  or  under  any  other  authority, 
or  in  any  other  manner  whatsoever  in  case  this  act  had  not 
been  passed"  (V). 

By  23  &  24  Vict.  c.  59,  s.  3,  "  where  any  lands  belonging 
to  any  such  university  or  college  as  aforesaid  shall  at  any 
time  have  been  leased  at  the  best  and  most  improved  yearly 
rent,  without  fine,  no  fine,  premium  or  foregift,  or  anything 
in  the  nature  thereof,  shall  hereafter  be  taken  by  any  such 
university  or  college  for  the  grant  or  renewal  of  any  lease 
of  the  same  lands." 

Mortgages  by  demise.  —  The  above  universities  and  colleges 
have  also  power  to  raise  monies  for  certain  purposes,  with 
the  consent  of  the  Copyhold  Com^nissioners,  by  way  of  mort- 
gage for  a  term  of  years  determinable,  &c.  (m). 

Eton.  —  By  31  &  32  Vict.  c.  118,  24,  the  new  governing 
body  of  Eton  may  make  a  scheme  for  running  out  their 
leases,  so  that  their  property  may  be  let  at  rack-rent  instead 
of  on  leases  renewable  on  payment  of  fines. 

London  University.  —  The  University  of  London  and  col- 
leges  not  within    the    acts   of   1858  and  1860,   must   lease 

"Lease,  (Ecclesiastical,  College,  and  ments  vested  in   such   college.      So, 

Hospital)."  under  19  &  20  Vict.  c.  05,  the  univer- 

(/)  See  18  Eliz.  c.  11,  ss.  5,  6,  ante,  sity  of   Oxford,   and  the  colleges  in 

sect.  14  (h).     Under  19  &  20  Vict.  c.  the  said  university,  and  Winchester 

88,  s.  48,  any  college  at  Cambridge  or  College,  may,  with  the   like  consent, 

Eton  may,  with  the  consent  of   the  sell  or  exchange  lands,  &c. 
Church  Estates    Commissioners,  sell  (m)  21  &  22  Vict.  c.  44,  ss.  27,  28 

or  exchange  any  lands  or  heredita-  23  &  24  Vict.  c.  59,  s.  1. 

49 


*32  BY   WHOM  TERMS   GRANTED.  [Ch.  I.  S.  16. 

according  to  their  own  private  statutes,  charters  and  b3'e- 
laws,  and  on  demising  any  church  property  must  conform  to 
the  restrictions  and  conditions  imposed  by  such  of  the  Dis- 
abling or  Restraining  Statutes  as  may  be  applicable  (n). 


Sect.  16.  —  B//  Parish  Officers. 

Leases  of  small  pieces  of  parish  land.  —  The   act  59   Geo.  3, 

s.  13,  provides  "  that  for  the  promotion  of  industry  amongst 
the  poor,  it  shall  be  lawful  for  the  church-wardens  and  over- 
seers of  the  poor  of  any  parish,  tvith  the  consent  of 
['*32]  *  the  inhabitants  in  vestry  assembled  (o),  to  let  any 
portion  or  portions  of  such  parish  lands  as  aforesaid, 
or  of  the  land  to  be  so  purchased  or  taken  on  account  of  the 
parish  (^),  to  any  poor  and  industrious  inhabitant  of  the 
parish,  to  be  b}^  him  or  her  occupied  and  cultivated  on  his 
or  her  own  account,  and  for  his  or  her  own  benefit,  and  at 
such  reasonable  rent  and  for  such  terms  as  shall  by  the 
inhabitants  in  vestry  be  fixed  and  determined." 

Previous  law.  —  Before  this  act  a  person,  who  held  under 
a  lease  granted  by  parish  officers,  was  only  a  tenant  from 
year  to  year  (<^). 

Leases,  how  made.  —  In  the  making  of  leases  under  this 
act,  the  terms  of  it  must  be  strictly  observed ;  therefore  a 
memorandum  not  signed  by  all  the  parisli  officers,  or  by 
their  order,  is  not  a  lease  pursuant  to  the  statute  (?')  ;  not 
only  the  churchwardens,  but  also  the  overseers,  must  join  in 
the  lease  (s).  An  invalid  lease  made  by  some  of  the  parish 
officers,  coupled  with  possession  thereunder,  will  determine 
a  previous  tenancy  at  will,  and  enable  the  new  lessee  to 
maintain  trespass  (0* 

(n)  Ante,  30,  note  (h).  (s)  Woodcock  v.  Gibson,  4  B.  &  C. 

(o)  The  consent  of  the  Local  Gov-  402  ;  riiillii)s  v.  rearce,  5  li.  &  C.433  ; 

emmcnt  Board  does  not  appear  to  be  Doe  d.  Jackson  v.  Ililey,  10  B.  &  C. 

necessary.     See  tlie  concluding  pro-  885;  Allason  t\  Stark,  0  A.  &  E.  255  ; 

viso  in  4  &  5  Will.  4,  c.  70,  s.  21.  Att.-Gen.  v.  Lewin,  8  Sim.  30(5 ;  Riim- 

(/»)  As  mentioned  in  sect.  12,  not  ball  i-.  Munt,  8  Q.  B.  382;  St.  Niclio- 

exceeding  twenty  acres.  las,  Deptfnrd  r.  Sketelilcy,  M.  304. 

(7)  Doe  fl.  IlitxKs  v.  Terry,  4  A.  &E.  (0  Wallis  v.  Delmur,  2<J  L.  J.,  Ex. 

274  ;  Doe  d.  Ilobbs  v.  Cocke!!,  Id.  478.  270. 

(r)  Doe  (I.  Landsell   )•.   Gower,  17 
Q.  B.  589;    21    L.  .!.,   Q.   B.  57. 

50 


Cii.  I.  S.  17.]  TRUSTEES   OF   SETTLED   ESTATES.  *32 

Copyholds.  —  The  above  enactment  does  not  apply  to 
copyhold  land  (?/). 

Cottage  allotments.  —  Where,  in  parishes  inclosed  under 
acts  of  parliament,  allotments  are  made  for  the  benefit  of 
the  poor,  it  is  provided  by  2  &  3  Will.  4,  c.  42,  and  8  &  9 
Vict.  c.  118,  s.  109,  as  amended  by  the  Poor  Allotment  Man- 
agement Act,  1873  (36  Vict.  c.  19),  that  a  committee  ap- 
pointed b}^  the  allotment  trustees  and  parish  officers,  or  by 
the  "allotment  wardens,"  as  the  case  may  be,  may  let  the 
allotments  to  "  industrious  cottagers  "  or  "  poor  inhabitants 
of  the  parish,"  as  the  case  may  be.  A  year's  rent  may  be 
required  to  be  paid  in  advance.  It  was  provided  by  2  &  3 
Will.  4,  c.  42,  that  no  allotment  should  be  made  of  less  than 
one  quarter  of  an  acre,  but  this  j)rovision  is  repealed  by  the 
10th  section  of  the  act  of  1873  above  referred  to  (a;).  The 
Allotments  Extension  Act,  1882  (45  &  46  Vict.  c.  80),  im- 
poses further  obligations  upon  the  trustees  to  let  the  land  in 
allotments  (^). 

Sect.  17.  —  By  Trustees  of  Settled  Estates?- 

The  extensive  powers  of  leasing  conferred  by  the  Set- 
tled Land  Act,  1882,  upon  tenants  for  life   [ante,  sect.  4]. 

(«)  Doe  d.  Bailey  v.  Foster,  3  C.  B.  premises  by  proceedings  before  jus- 

215.  tices,  Chap.  XXII.,  Sect.  3  (b)  post. 

(,r)  See  further  as  to  these  acts,  (^)  See  post,  Sect.  18. 

and  the  power  to  recover  the  demised 

1  Leases  by  trustees ;  power  depends  on  quantity  of  estate  and 
purposes  of  trust.  —  Whether  trustees  can  grant  leases  depends  upon  the 
nature  of  their  estates.  If  they  have  unqualified  legal  fees,  they  can  grant 
leases  upon  any  terms  they  please  good  at  law,  but  subject,  to  be  set  aside  in 
equity  if  inconsistent  with  the  purposes  of  tlie  trust.  Greason  v.  Keteltas,  17 
N.  Y.  491,  494,  495;  Newcomb  v.  Ketteltas,  19  Barb.  (N.  Y.  Supreme  Ct.) 
608,  012,  013,  029  (and  see  opinions  of  Mitchell  and  Gierke,  JJ.,  that  if  the 
fee  is  a  determinable  one,  the  trustee  has  full  power  so  long  as  it  remains 
undetermined).  If  a  trustee  who  has  a  life  estate  or  any  other  estate  less  than 
a  fee  grant  a  renewable  lease,  he  cannot  renew  it  after  the  exjiiration  of  his 
estate.  Bergengren  v.  Aldrich,  139  Mass.  259.  Whether  trustees  having  less 
than  a  fee  can  grant  leases,  and  if  so  what  kind  of  leases  they  can  grant,  de- 
pends upon  the  construction  of  the  trust  instrument  and  the  purposes  of  the 
trust.  Hedges  v.  Biker,  5  Johns.  Ch.  (N.  Y.)  103.  If  a  trustee  has  any  doubt 
upon  tliis  point,  he  can  apply  for  instructions,  and  lease  under  direction  of  a 
court  of  chancery.     Hedges  v.  Riker,  5  Johns.  Ch.  (N.  Y.)  103.      Of  course 

51 


*33  BY   WHOM  TERMS   GRANTED.  [Ch.  I.  S.  17. 

[*33]     have   rendered   almost    *  unnecessary  an}^  resort  to 
the  court  by  trustees  under  sect.  4  of   the   Settled 

they  can  grant  leases  if  they  have  power  either  expressly  or  impliedly  given 
them  by  the  trust  instrument.  Hedges  v.  Riker,  5  Johns.  Ch.  (X.  Y.)  163 
(per  Kent,  Chan.)  ;  Pleasonton's  Appeal,  99  Pa.  362  ;  Black  v.  Ligon,  Harper's 
Eq.  (S.  C.)  205. 

Leases  good  at  law  are  ezaminable  in  equity. —  Although  leases 
granted  by  trustees  having  unlimited  fees  are  "good  at  law  whatever  may  be 
their  terms  ;  they  are  nevertheless  subject  to  the  supervisory  jurisdiction  .  .  . 
of  equity"  (per  Selden,  J.,  in  Greason  v.  Keteltas,  17  N.  Y.  491.  Whatever 
may  be  the  legal  quantity  of  trustee's  estates,  and  whether  unlimited  or  quali- 
fied, they  cannot  grant  imusual  leases,  or  leases  inconsistent  with  the  nature 
and  character  of  the  trust.  They  will  not  (at  least  if  their  title  is  limited) 
ordinarily  be  justified  in  granting  leases  of  unopened  mines,  or  for  a  long 
term  (as  building  leases).  2  Perry  on  Trusts  (3d  ed.)  sec.  528.  In  Greason 
I'.  Keteltas,  17  N.  Y.  491,  under  a  devise  in  fee  in  trust  to  pay  expenses,  taxes, 
&c.,  and  to  pay  residue  of  rents  and  profits  to  testator's  children  and  issue,  it 
was  held  trustee  was  impliedly  authorized  to  grant  building  lease  of  lots  in 
New  York  City  for  twenty-one  years,  with  covenant  of  renewal  or  payment  of 
damages  upon  valuation  of  building  to  be  erected.  In  Black  v.  Ligon, 
Harper's  Eq.  (S.  C.)  205,  the  trustees  of  a  permanent  charity  wliich  forbade 
them  to  alienate  the  land,  but  required  them  to  apply  the  funds  under  penalty 
of  a  revocation,  granted  a  building  lease  for  ninety-nine  years  (after  several 
unsuccessful  attempts  to  lease  for  shorter  term),  for  a  verj'  moderate  gross 
sum  payable  in  eight  years,  and  without  any  annual  reservation  of  rent,  and 
the  lease  was  held  under  the  circumstances  valid.  Of  this  case  Cliancellor 
Kent  saj's  :  "This  was  pushing  an  implied  power  to  lease  very  far,  and  I 
apprehend  it  went  beyond  the  established  precedents."  4  Kent's  Com.  (13th 
ed.)  sec.  107.  Trustees  under  trusts  of  a  continuing  nature  charged  with  the 
payment  of  debts,  annuities,  &c.,but  with  no  power  of  alienation,  usually  have 
not  only  an  implied  power  (2  Perry  on  Trusts  (3d  ed.)  sec.  528),  but  a  duty  of 
leasing,  and  if  they  do  not  exercise  it,  will  be  liable  to  removal.  Pleasonton's 
Appeal,  99  Pa.  St.  362,  309  (per  Sharswood,  C.  J.).  L'nder  circumstances, 
however,  they  may  themselves  take  charge  of  the  property  and  operate  it, 
accounting  for  the  profits.  Dennis  r.  Dennis,  15  Md.  73.  Trustees  having 
power  "  to  sell  and  dispose  of  "  the  property  have  power  to  lease  it,  because 
the  greater  power  includes  the  less.  Hedges  v.  Riker,  5  Johns.  Ch.  (N.  Y) 
103,  167.  The  trustees  of  property  to  pay  debts  have  implied  powers  to  sell. 
Vallette  v.  Bennett,  09  111.032;  Porter  v.  Schofield,  55  Mo.  56;  Sharp  i'. 
Goodwin,  51  Cal.  219.  The  powers  of  trustees,  when  not  restrained  by  the 
trust  instrument,  extend  to  the  sale  of  realty,  and  cestuis  can  only  interfere  by 
application  to  equity  and  showing  a  violation  of  the  trust.  Huckabce  t'.  Bil- 
lingsly,  10  Ala.  411. 

Trustees:  are  joint  tenants.  —  Trustees  are  joint  tenants  ;  they  have  all 
equal  authority  and  must  all  join  in  conveyances.  Sinclair  r.  .Jackson,  8  Cow. 
(N.  Y.)  543,  553  (and  see  per  Savage,  Ch.  J.)  ;  Van  Rensselaer  r.  Akin,  22 
Wend.  (N.  Y.)  549,  552  (per  Cowen,  J.);  Wilbur  v.  Almy,  12  How.  180; 
licarned  c.  Welton,  40  Cal.  349.  But  a  lease  made  by  one  with  the  sanction 
of  the  others  is  the  joint  .■ict  of  all.     Davis  v.  I.owis,  8  Ont.  1. 

Personal  liability  of  trustees.  —  If  a  trustee  lease  with  covenants,  he 
will  be  personally  lia))le.  Greason  i^.  Keteltas,  17  N.  Y.  491,  497.  But  he 
need  not  make  covenants  (/"'•  Sehlen,  .1.). 

5-2 


Ch.  I.  S.  17.]  TRUSTEES    OF   SETTLED    ESTATES.  *33 

Estates  Act,  1877 ;  but  as  that  enactment  is  not  repealed,  it 
is  apprehended  that  resort  may  still  be  had  to  it  in  particular 
cases,  and  it  may  also  be  sometimes  necessary  to  consider  its 
provisions  in  connection  with  leases  prior  to  1883. 

Order  of  court.  —  Sect.  4  of  the  Settled  Estates  Act, 
1877  (2),  provides  that,  "  it  shall  be  lawful  for  the  court "' 
(i.e.  the  Chancery  Division  of  the  High  Court),  "  if  it  shall 
deem  it  proper  and  consistent  wdth  a  due  regard  for  the 
interest  of  all  parties  entitled  under  the  settlement  (a),  and 
subject  to  the  provisions  and  restrictions  in  that  act  con- 
tained, to  authorize  leases  of  any  settled  estates  (a),  or  of 
any  rights  or  privileges  over  or  affecting  any  settled  estates, 
for  any  purpose  whatsoever,  whether  involving  waste  or 
not,"  provided  five  specified  conditions  be  observed,  viz.:  — 

Five  conditions.  —  1.  The  lease  must  take  effect  in  posses- 
sion at  or  within  one  year  next  after  the  making  thereof, 
and  be  for  a  term  of  years  not  exceeding  for  an  agricultural 
or  occupation  lease,  twenty-one  years ;  for  a  mining  lease, 
or  a  lease  of  water  mills,  wayleaves,  water-leaves  or  other 
rights  or  easements,  forty  years  ;  for  a  repairing  lease, 
sixty  years  (6)  ;  and  for  a  building  lease,  ninety-nine  years : 
but,  except  in  the  case  of  agricultural  leases,  where  the 
court  shall  be  satisfied  that  it  is  the  usual  custom  in  the 
district,  and  beneficial  to  the  inheritance  to  grant  leases 
for  longer  terms,  then  for  such  term  as  the  court  shall 
direct  (c).  2.  The  best  rent  must  be  reserved  that  can  be 
reasonably  obtained,  to  be  made  payable  half-yearly  or 
oftener,  without  taking  any  fine  or  other  benefit  in  the 
nature  of  a  fine.  3.  If  the  lease  be  of  minerals,  &c.,  a  cer- 
tain portion  of  the  rent  must  be  set  aside  and  invested.  4. 
The  felling  of  trees,  except  so  far  as  is  necessary,  must  not 
be  authorized.  5.  "  Every  such  lease  shall  be  by  deed,  and 
the  lessee  shall  execute  a  counterpart  thereof,  and  every 
such  lease  shall  contain  a  condition  for  re-entry  on  non-pay- 

(2)  40  &  41  Vict.  c.  18.     This  act  "settled  estates"  are  defined  by  sect, 

consolidates  the  original  Settled  Es-  2. 

tates  Act,  185G  (19  &  20  Vict.  c.  120),  {h)  Taken  from  21  &  22  Vict.  c.  77, 

with  four  amending  acts,  all   being  s.  2. 
repealed  by  the  schedule.  (c)  Taken  from  21  &  22  Vict.  c.  77, 

(a)  The    words   "settlement"    and  s.  4. 

53 


*34  BY   WHOM  TERMS    GRANTED.  [Ch.  I.  S.  17. 

ment  of  the  rent  for  a  period  of  twenty-eight  clays  after  it 
becomes  due,  or  for  some  less  period  to  be  specified  in  that 

behalf  "(tf). 

With  reference  to  the  second  condition,  that  "  the  best 
rent  shall  be  reserved,"  the  same  4th  section  provides,  that 
"  in  the  case  of  a  mining  lease,  a  repairing  lease,  or  a  build- 
ing lease,  a  peppercorn  rent,  or  any  smaller  rent  than  the 
rent  to  be  ultimately  made  payable,  may,  if  the  court  think 
fit  so  to  direct,  be  made  payable  during  all  or  any  part  of 

the  first  five  years  of  the  term  of  the  lease  "  (e). 
[*34]  *  Special  covenants.  —  The  5th  section  provides 
that,  "subject  and  in  addition  to  the  conditions 
hereinbefore  mentioned,  every  such  lease  shall  contain  such 
covenants,  conditions  and  stipulations  as  the  court  shall 
deem  expedient  with  reference  to  the  special  circumstances 
of  the  demise." 

The  court  cannot  authorize  a  lease  under  this  act,  if  any 
one  of  the  parties  interested  under  the  .settlement  opposes 
the  application  (/).  Leases  granted  by  trustees  under  the 
provisions  of  this  act  must  be  settled  in  judge's  chambers  (^). 
If  an  act  of  parliament  be  necessary,  the  court  will  make  a 
declaratory  decree  that  it  is  proper  that  an  application  should 
be  made  to  parliament  to  extend  the  leasing  powers  (A). 

Lease  of  mansion  house,  &c.  —  We  have  already  seen  (ante, 
p.  7)  that  the  principal  mansion  house  &c.  on  a  settled  estate 
cannot  be  let  without  the  consent  of  the  trustees  of  the 
settlement,  or  an  order  of  the  court. 

Leases  under  powers.  —  Where  any  settlement  made  by 
deed,  will,  or  otherwise,  before  or  after  passing  of  the  Settled 
Estates  Act,  1850,  contains  powers  to  the  trustees  for  the 
time  being  (with  the  consent  of  the  tenant  for  life)  to  grant 
leases,  such  leases  may  be  granted  in  accordance  with  such 
powers,  the  i)Owers  granted  by  the  Settled  Land  Act,  1882, 


(d)  Note,    that   the    condition    for  (/)  In  re  Merry,  30  L.  J.,  Ch.  168  ; 
re-entry  does  not  ajii)ly  to  breaclies  16  W.  R.  307. 

of  covenant  generally.     See  p.  114,  {g)  In   re    I'roctor,  20    L.   J.,    Ch. 

post.  464. 

(e)  Sufjpested  apparently  by  Cust  (//)  Savil  v.  Bruce,  20  Beav.  557. 
V.  Middleton,  3  IJe  G.  F.  &  J.  33. 

54 


Ch.  I.  S.  17.]  TRUSTEES    OF    SETTLED    ESTATES.  *35 

being  cumulative.  The  provisions  of  that  act,  however,  pre- 
vail in  case  of  conflict  with  the  provisions  of  the  settlement, 
so  that  the  consent  of  the  tenant  for  life  is  in  every  case 
necessary  (i). 

Where  lands  are  devised  to  trustees  in  fee  upon  trusts  or 
with  powers  which,  in  their  execution,  require  the  exercise 
of  judgment  and  discretion,  such  as  granting  leases,  and  the 
trustees  disclaim,  so  that  the  estate  in  fee  descends  to  the 
testator's  heir-at-law,  such  powers  or  trusts  cannot  be  exer- 
cised or  carried  into  execution  by  the  heir,  although  he  holds 
the  estate  subject  to  the  trusts  of  the  will  (k).  Where  the 
heir  of  a  surviving  trustee  is  the  proper  party  to  demise,  a 
lease  granted  by  the  executors  of  such  trustee  is  void,  and 
not  cured  by  12  &  13  Vict.  c.  26  (0- 

Effect  of  leases  under  powers.  —  When  an  appointment  by 
way  of  demise  is  made  in  pursuance  of  a  power  of  leasing 
contained  in  a  settlement,  it  will  take  effect  in  preference 
and  priority  to  any  long  term  of  years  limited  in  the  settle- 
ment for  providing  any  jointure  or  portions  for  younger 
children  or  the  like.  The  leasing  power  is  considered  as  con- 
trolling and  superseding  such  term,  until  it  is  called  into 
action,  after  which  the  leasing  power  will  be  put  an 
end  to  (ni).  The  person  entitled  under  the  *  settle-  [*35] 
ment,  whose  estate  is  displaced  or  superseded  pro 
tanto  by  any  such  lease,  is  considered  as  the  immediate  rever- 
sioner upon  such  lease,  and  may  sue  for  any  breach  of  cove- 
nant therein  contained  (w),  and  may  sue  or  distrain  for  the 
rent  thereby  reserved  (o). 

Leases  not  in  pursuance  of  Settled  Estates  Act,  &c.  —  Before 
the  Settled  Estates  Act,  1856  (19  &  20  Vict.  c.  120),  a  trus- 
tee having  the  legal  estate  in  lands  might  have  made  leases 
which  would  have  been  valid,  provided  they  were  justified 

(0  Settled  Land  Act,  1882,  s.  56.  Humphreys,  4  A.  &  E.  299;  Maun- 

(k)  Robson  V.  Flight,  34  L.  J.,  Ch.  drell   v.  Manndrcll,  10  Yes.  246  ;    2 

226;  13  W.  R.  393.  Chance  on  Powers,  s.  1410;  Carpenter 

(0  Ex  parte  Cooper,  Ee  North  Lon-  r.  Parker,  3  C.  B.,  N.  S.  231. 

don  R.  Co.,  34  L.  J.,  Ch.  373.  (n)  Isherwood  v.  Oldknow,  3  M.  & 

(m)  Doe  d.  Courtail  v.  Thomas,  9  S.  382. 

B.  &  C.  288,  293  ;   Doe  d.  Rogers  v.  (o)  Rogers  v.  Humphreys,  4  A.  i 

Rogers,  5  B.  &  Ad.  704 ;  Rogers  i-.  E.  299. 

55 


*35  BY   WHOM   TERMS    GRANTED.  [Cii.  I.  S.  18. 

by  the  quantity  of  his  estate  although  no  express  power  of 
leasing  was  vested  in  him  by  the  settlement.  But  a  party 
taking  a  lease  from  the  trustee,  with  notice  of  the  trust,  and 
without  the  concurrence  of  the  cestui  que  trust,  was  subject 
to  the  control  of  equity  (^).  Thei-e  was  no  general  rule  as 
to  what  leases  might  be  granted  by  trustees,  but  they  were 
authorized  to  do  what  was  reasonable  in  each  particular 
case  (5').  No  lease  could  be  safely  taken  from  them  without 
the  concurrence  of  the  cestui  que  trust,  or  the  sanction  of 
the  Court  of  Chancery  (r). 

Trustees  need  not  be  parties.  —  Where  a  lease  is  granted 
under  the  Settled  Land  Act,  1882,  by  the  tenant  for  life,  it 
is  neither  necessary  nor  desirable  that  the  trustees  should  be 
made  formal  parties  thereto. 

Lease  by  trustees  for  infant.  —  If  an  infant  is  tenant  for 
life,  the  trustees  of  the  settlement  may  act  for  him  (s). 


Sect.  18.  —  By  Trustees  of  Charities. 

The  estates  of  charities  are  subject  to  the  provisions  of 
"The  Charitable  Trusts  Act,  1853"  (16  &  17  Vict.  c.  137), 
as  amended  by  18  &  19  Vict.  c.  124,  23  &  2-1  Vict.  c.  136, 
and  32  &  33  Vict.  c.  110. 

Leases,  &c.,  authorized  by  charity  commissioners.  —  By  16  & 
17  Vict.  c.  137,  s.  26,  "  the  leases,  sales,  exchanges  and  other 
transactions  authorized  by  such  board  (C)  under  the  powers 
of  this  act  shall  have  the  like  effect  and  validity  as  if  they 
had  been  authorized  or  directed  by  the  express  terms  of  the 
trust  affecting  the  charity." 

Official  trustees.— By  18  &  19  Vict.  c.  124,  s.  15,  "the 
secretary  for  the  time  being  of  the  board  shall  be  a  corpora- 
tion sale,  by  the  name  of  '  The  Official  Trustee  of  Charity 
Lands,'  for  taking  and  holding  charity  lands  and  by  that 
name  (instead  of  the  name  of  'Treasurer  of  Public  Cliari- 

(/))  Piatt  on  Leases,  345.  (s)  Post,  sect.  19, 

(7)  Att.-Gcn.  V.  Owen,  10  Ves.  555.  [t)  Any  two  of  tlie   Charity  Coni- 

(r)  Piatt  on   Leases,  347;  Malpas  missioners   for    England   and  Wales 

V.  Ackland,  3  Kuss.  373.  sitting  as  a  Board  ;  sect.  6. 

56 


Cn.  I.  S.  18.]  TllUSTEES   OF   CHARITIES.  *36 

ties ')  shall  have  perpetual  succession ;  and  all  lands  or 
estates  or  interests  in  land  now  vested  in  the  '  Treasurer 
of  Public  Charities'  by  that  name  shall  become,  upon 
the  passing  of  this  act,  and  by  virtue  thereof,  *  vested  [*36] 
in  like  manner  and  upon  the  same  trusts  in  '  The 
Official  Trustee  of  Charity  Lands,'  and  all  provisions  of  the 
principal  act  which  have  reference  to  '  The  Treasurer  of 
Public  Charities '  shall  operate  as  if  the  name  of  '  The 
Official  Trustee  of  Charity  Lands '  had  been  used  therehi 
instead  of  the  name  of  '  Treasurer  of  Public  Charities.'  " 

Power  to  acting  trustees.  —  By  sect.  16,  "  the  acting  trustees 
of  every  charit}^,  or  the  majority  of  them,  provided  that  such 
majority  do  not  consist  of  less  than  three  persons,  shall  have 
at  law  and  in  equity  power  to  grant  all  such  leases  or  tenan- 
cies of  land  belonging  thereto,  and  vested  in  the  official 
trustee  of  charity  lands,  as  they  would  have  power  to  grant 
in  the  due  administration  of  the  charity  if  the  same  land 
were  legally  vested  in  themselves ;  and  all  covenants,  condi- 
tions and  remedies  contained  in  or  incident  to  any  lease 
or  tenancy  so  granted  shall  be  enforceable  by  and  against 
the  trustees  or  persons  acting  in  the  administration  of  the 
charity  for  the  time  being,  and  their  alienees  or  assigns, 
in  like  manner  as  if  such  lands  had  been  legally  vested  in 
the  trustees  granting  such  lease  or  tenancy  at  the  time  of 
the  execution  thereof,  and  had  legally  remained  in-  or  had 
devolved  to  such  trustees  or  administrators  for  the  time  being, 
their  alienees  or  assigns,  subject  to  the  same  lease  or  tenancy." 

By  the  Charitable  Trusts  Act,  1860  (23  &  24  Vict.  c.  136, 
s.  16),  a  majority  of  two-thirds  of  the  trustees  of  any  charity 
assembled  at  a  meeting  of  their  body  duly  constituted,  and 
having  power  to  determine  on  any  lease  of  any  property  of 
the  charity,  was  empowered  to  lease  the  charity  property. 
A  clear  majority  was  substituted  for  the  two-thirds  majority 
by  s.  12  of  the  Charitable  Trusts  Act,  1869,  32  &  33  Vict, 
c.  110  (s.  17  of  which  act  repealed  s.  16  of  the  act  of  1860). 

Power  of  majority  of  trustees.  —  Section  12  of  the  act  of 
1869  is  as  follows:  —  "Where  the  trustees  or  persons  acting 
in  the  administration  of  any  charity  have  power  to  determine 
on  any  sale,  exchange,  jDartition,  mortgage,  lease  or  other 

57 


*37  BY   WHOM  TERMS   GRANTED.  [Ch.  I.  S.  18. 

disposition  of  any  property  of  the  charity,  a  majority  of  those 
trustees  or  persons  who  are  present  at  a  meeting  of  their 
body  duly  constituted  and  vote  on  the  question  shall  have 
and  be  deemed  to  have  always  had  full  power  to  execute 
and  do  all  such  assurances,  acts  and  things  as  may  be  requi- 
site for  carrj'ing  any  such  sale,  exchange,  partition,  mortgage, 
lease,  or  disposition  into  effect,  and  all  such  assurances,  acts 
and  things  shall  have  the  same  effect  as  if  they  were  respec- 
tively executed  and  done  by  all  such  trustees  or  persons  for 
the  time  being  and  by  the  official  trustee  of  charity  lands." 

Before  the  act  of  1860,  trustees  of  charities  might  have 
granted  leases  of  the  lands  belonging  to  the  charities,  pro- 
vided they  were  such  in  all  their  circumstances  as  were  bene- 
ficial to  the  interests  of  the  charities ;  but  if  other- 
[*37]  wise,  the  Court  of  Chancery  would  have  set  *  them 
aside  at  any  distance  of  time  (it),  until  protected  by 
the  Statute  of  Limitations  (a;).  Where  it  was  necessary  to 
grant  a  large  number  of  building  leases  of  charity  lands  in 
nearly  the  same  form,  under  the  provisions  of  an  act  of  par- 
liament, and  one  lease  had  been  settled  in  chambers,  the 
Court  of  Chancery  allowed  the  charity  to  grant  other  build- 
ing leases  from  time  to  time  in  the  same  form,  without 
reference  to  chambers,  the  model  lease  being  appended  to 
the  order  (?/).  Trustees  of  a  charity  have  been  authorized 
to  grant  building  leases  for  600  years,  such  being  the  custom 
of  the  neighbourhood,  and  it  appearing  beneficial  (z). 

Letting  of  charity  land. —  We  liave  seen  (ante^  sect.  16) 
that  under  various  statutes  parish  officers  and  others  are 
empowered  to  let  lands  in  allotments  to  "industrious  cot- 
tagers "  and  the  like.  The  principle  of  these  statutes  is 
applied  to  charity  lands  generally  by  the  "  Allotments  Ex- 
tension Act,  1882"  (45  &  46  Vict.  c.  80).     By  s.  1  of  this 

(u)  4   Jarm.    Byth.   259,   3rd   ed.;  De  Gex  &  J.  136;  Att.-Gcn.  i;.  Payne, 

Att.-Gen.  v.  Cross,  3  Mer.  540;  Att.-  27  Beav.  1()8  ;  Att.-Gcn.  v.  Magdalen 

Gt-n.  V.  Owens,  10  Ves.  555  ;  Att.-Gcn.  Collctrc  Oxford,  G   H.  L.   Cas.   189, 

*;.  Brooke,  18  Ves.  320;  Att.-Gcn.  v.  200;  20  L.  J.,  Ch.  020. 

Lord  Hoiliani,  3  Kiiss.  415.  (y)  Att.-Gen.     v.    Christ     Church, 

(r)  3  &  4  Will.  4,  c.  27,  ss.  24,  25,  Oxford,  Giff.  514 ;  8  Jur.,  N.  S.  989. 

26,  27,  which   extends   to   charities;  (s)  /h  re  Cross,  27  Beav.  692. 
Att.-Gen.  v.  Davey,  19  Beav.  521;  4 


Ch.  I.  S.  10.]  LEASES   BY  INFANTS.  .  *38 

act  "'  all  trustees  in  whom  lands  are  vested,  or  by  whom  tlie 
same  are  held  or  managed  for  the  benefit  of  the  poor  of  any 
parish  or  place  in  or  adjoining  to  that  in  which  such  lands 
are  situate,  and  whereof  the  rents  or  produce  are  distributed 
in  gifts  of  money  doles,  fuel,  clothing,  bread  or  other  articles 
of  sustenance  or  necessity,  shall,  where  such  lands  are  not 
otherwise  used  for  the  benefit  of  the  parish  in  which  it  is  situ- 
ate as  a  recreation  ground,  or  otherwise,  for  the  enjoyment  or 
general  benefit  of  the  inhabitants,  take  proceedings  "  in  man- 
ner in  the  act  mentioned  "  for  letting  such  lands  to  cottagers, 
labourers  and  others."  By  s.  10,  if  the  trustees  neglect  to 
comply  with  the  act,  the  Charity  Commissioners  may  compel 
compliance,  on  the  application  of  not  less  than  four  persons 
who  would  be  entitled  to  the  benefit  of  the  act.  By  s.  12, 
rent  or  possession  may  be  recovered  under  ss.  110,  111  of 
the  Inclosure  Act,  1845,  and  by  s.  13  every  allotment  shall 
be  let  free  of  all  charges  "  at  such  rent  as  land  of  the  same 
quality  is  usually  let  for  in  the  same  parish,"  and  "  one  per- 
son shall  not  hold  any  allotment  exceeding  one  acre." 

Letting  to  other  than  cottager.  —  By  subsect.  6  of  S.  13,  "  if  at 
any  time  the  trustees  are  unable  to  let  any  allotment  or  any 
portion  thereof,  they  may  let  the  same,  or  such  portion  thereof 
as  may  be  unlet,  at  the  best  annual  rent  which  can  be  obtained 
for  the  same,  without  any  premium  or  fine,  and  on  such 
terms  as  may  enable  them  to  resume  possession  thereof 
within  a  period  not  exceeding  twelve  months,  if  it  should  at 
any  time  be  required  to  be  let  for  allotments." 


*  Sect.  19.  —  By  Infants.  [*38] 

At  common  law.  —  At  common  law  leases  made  by  in- 
fants are  not  made  absolutely  void,  but  voidable  on  their 
attaining  their  majority  (a),^  and  that  notwithstanding  the 

(a)  Ketsey's  Case,  Cro.  Jac.  ?>20  ;  Com.  L.  E.  61 ;  Slator  v.  Trimble,  Id. 
Ashfield  V.  Ashfield,  Sir  W.  Jon.  157  ;  342  ;  Simpson  on  Infancy  (a.  d.  1875), 
Plowd.  418;  Slator  v.  Brady,  14  Ir.       p.  27. 

1  Contracts  of  infants  voidable.  —  Contracts  of  infants  are  not  void, 
but  voulal)le  merely.  Singer  Mfg.  Co.  v.  Lamb,  81  Mo.  221  ;  Leitcnsdorfer 
t;.  Hempstead,  18  Mo.  269;  Eagle  Fire  Ins.  Co.  v.  Lent,  G  Paige,  638;  Bool  v. 

59 


*38     .  BY   WHOM   TERMS   GRANTED.  [Ch.  I.  S.  19. 

Mix,  17  Wend.  110,  131  ;  Roberts  v.  Wiggin,  1  N.  H.  73;  Phillips  v.  Green,  3 
A.  K.  Marsh.  (Ky.)  7,  14  (per  Owsley,  J.). 

"Who  may  avoid. — No  one  but  the  infant  or  his  legal  representatives 
can  avoid  them;   creditors  cannot.     Roberts  v.  Wiggin,  1  N.  H.  73. 

When  and  how  may  affinn.  —  When  the  infant  arrives  at  majority,  he 
may  expressly  or  impliedly  afSrm  them.  In  Irvine  v.  Irvine,  9  Wall.  617, 
627,  it  was  held  that  an  infant's  deed  may  be  affirmed  by  less  solemn  acts  than 
are  required  to  avoid  it.  The  court  left  it  to  the  jury  to  say  whether  the 
infant  by  taking  a  lease  of  the  property  after  coming  of  age,  had  not  affirmed 
his  prior  deed.  An  infant's  conveyance  may  be  confirmed  in  various  ways 
other  than  by  a  contirmatory  deed.  For  example,  by  oral  declarations  of  sat- 
isfaction and  delay  to  disaffirm  (4;  years).  Wheaton  v.  East,  5  Yerg.  (Tenn.) 
41,  62 ;  by  receiving  part  of  purchase  money,  expressing  satisfaction  and 
declaring  an  intention  to  give  confirmatory  deed,  Ferguson  u.  Bell's  Admr., 
17  Mo.  347  ;  by  recitals  in  subsequent  deed,  Phillips  v.  Green,  5  Mon.  (Ky.) 
344,  355;  by  receiving  additional  money,  and  failing  to  disaffirm  seasonably, 
knowing  that  grantee  was  makin'g  valuable  improvements,  Highley  i'.  Barron, 
49  Mo.  103,  106,  107.  A  minor's  mortgage  may  be  affirmed  after  coming  of 
age  by  his  conveying  the  property  expressly  subject  to  the  mortgage.  Boston 
Bank  v.  Chamberlin,  15  Mass.  220.  A  mere  contingent  promise  to  give  a 
confirmatory  deed  is  not  an  affirmance.     Glamorgan  v.  Lane,  9  Mo.  446. 

Retaining  note  given  for  purciiase  money  four  years  by  infant  feme  sole, 
and  afterward  by  her  husband,  thirty-one  years,  including  eleven  after  her 
death,  was  held  to  constitute  a  ratification  in  Kline  i'.  Beebe,  6  Conn.  494. 
The  promise  of  an  infant  after  obtaining  majority  to  endeavor  to  procure 
money  and  send  it  to  the  payee  of  a  promissory  note,  made  during  his  infancy 
by  his  adult  partner  in  the  name  of  the  firm,  ratifies  the  note.  Whitney  v. 
Dutch,  14  Mass.  457. 

Effect  of  failure  to  disaffirm.  —  As  to  whether  mere  failure  to  disaffirm 
within  a  reasonable  time  constitutes  an  affirmance,  is  a  question  upon  which 
there  is  a  conflict  of  authorities. 

It  is  held  in  the  United  States  Supreme  Court,  and  by  other  liigh  authori- 
ties, that  mere  failure  to  disaffirm  does  not  amount  to  a  ratification  unless  it 
has  continued  until  the  statute  of  limitations  has  run.  Sims  v.  Everhardt, 
102  U.  S.  300;  Wells  v.  Seixas,  24  Fed.  Rep.  (U.  S.  Circ.  Ct.  S.  D.  N.  Y.)  82  ; 
Prout  V.  Wiley,  28  Mich.  164.  M.  D.  Ewell,  in  note  to  Wells  v.  Seixas,  24 
Fed.  Rep.  82,  85,  says  that  the  weight  of  authority  agrees  with  the  above 
decisions,  although  there  are  contrary  authorities. 

A  deed  to  an  infant  may  be  impliedly  confirmed  by  his  conveying  the  land 
to  a  third  party  after  coming  of  age.     Uecker  v.  Koehn,  21  Neb.  559. 

Mere  silence  alone,  for  reasonable  time  of  course,  would  not  operate  as  an 
affirmance.  Wilson  r.  Branch,  77  Va.  65.  The  time  during  which  a  woman 
is  under  coverture  (at  least  if  under  common  law  disability)  or  out  of  the 
state,  would  not  be  reckoned,  in  computing  either  tlie  reasonable  time  or 
statutory  period  of  limitations,  [Wilson  c.  Branch,  77  Va.  65;  Birch  r.  Lin- 
ton, 78  Va.  584,]  necessary  to  bar  the  riglit  of  disaffirmance.  Certainly  a 
minor's  contract  is  not  voidable  after  expiration  of  a  reasonable  time  from 
majority,  thougii  the  statutory  period  of  limitations  has  not  exjiired :  if  from 
ecpiitable  reasons,  other  tiian  mere  silence,  the  minor  would  be  estopped  from 
avoiding  it.  Irvine  v.  Irvine,  9  Wall.  617,627  (see  opinion  of  Strong,  J.)  ; 
Cresinger  v.  Lessee  of  Welcli,  15  Ohio,  193;  Drake  v.  Ramsay,  5  Ohio,  252; 
Ferguson  r.  Bell,  17  Mo.  347  ;  Hostwick  r.  Atkins,  3  Comstock  (N.  Y.)53; 
Huth  V.  Carondelet  Marine  Ry.  &  Dock  Co.,  56  Mo.  206;  Wlieaton  v.  East,  5 

GO 


Cn.  I.  S.  10.]  LEASES   BY  INFANTS.  *38 

rent  reserved  is  not  the  best  obtainable  (/>).  The  lessee  can 
in  no  case  avoid  the  lease  on  account  of  the  infancy  of  the 
lessor  ((?).i  The  lease  is  voidable  by  the  infant  when  he 
becomes  of  age  (</),  but  not  before  (e)  ;2  or  by  his  heir  if  he 

(h)  Slator   V.  Brady,   14  Ir.  Com.  (d)  Slator  v.  Brady,  14  Ir.  Com.  L. 

L.  K.  01.  R.  (51. 

(c)  Zouch    d.  Abbot  v.  Parsons,  3  (e)  Slator  r.  Trimble,  14  Ir.  Com. 

Burr.  1806.  L.  R.  342.     The  doctrine  laid  down 

Yerg.  41,  02 ;  Peterson  v.  Laik,  24  Mo.  544 ;  Boody  v.  McKenncy,  23  Me.  523. 
And  see  cases  previously  cited  if  implied  affirmance. 

When  may  he  disaffirm.  —  A  minor  after  reaching  majority  may  (by  all 
authorities)  avoid  liis  contracts  within  a  reasonable  time. 

How  may  he  disaffirm. —  He  may  disaffirm  his  deed  by  giving  anotlier 
deed  inconsistent  therewith.  Jackson  v.  Carpenter,  11  Johns.  (N.  Y.)  539; 
Jackson  i:  Burchin,  14  Johns.  (N.  Y.)  124;  Bool  c.  Mix,  17  Wend.  (N.  Y.) 
119,  133  (per  Bronson,  J.)  ;  Lessee  of  Tucker?'.  Moreland,  10  Pet.  58;  Doe 
d.  Hoyle  v.  Stowe,  2  Dev.  &  Batt.  (N.  C.)  320;  111.  Land  &  Loan  Co.  v.  Beem, 
2  111.  App.  390,  397  (per  Bailey,  J.)  ;  Haynes  v.  Bennett,  53  Mich.  15;  Hagley 
V.  Fletcher,  44  Ark.  153 ;  Norcum  v.  Sheahan,  21  Mo.  25  ;  Dixon  v.  Merritt, 
21  Minn.  196. 

A  subsequent  deed,  unless  necessarily  inconsistent,  will  not,  however,  dis- 
affirm the  prior  deed.  For  example:  a  quit  claim  deed  given  after  majority 
does  not  disaffirm  a  mortgage  deed  given  during  minority,  because  the  two 
deeds  are  consistent  with  each  other.  Singer  Manuf.  Co.  v.  Lamb,  81  Mo. 
221.  But  a  warrantee  deed  is  inconsistent  with  a  prior  mortgage,  and  does 
disaffirm  it.  Dixon  v.  Merritt,  21  Minn.  190.  A  quit  claim  deed  given  in 
minority  by  a  minor,  then  owning  only  a  part  interest,  is  not  disaffirmed  by  a 
subsequent  quit  claim  deed,  slie  having  subsequently  acquired  the  remaining 
interest.     Leitensdorfer  v.  Hempstead,  18  Mo.  209. 

An  infant's  deed  may  be  avoided  also  by  demand  of  possession  and  suit 
of  ejectment.  Birch  i\  Linton,  78  Va.  584;  Wilson  v.  Branch,  77  Id.  65; 
Bedinger  v.  Wharton,  27  Gratt.  (Va.)  870;  Mustard  v.  Wohlford's  Heirs,  15 
Gratt.  (Va.)  329;  Sims  v.  Everhardt,  102  U.  S.  300. 

Entry  upon  the  land  accompanied  by  assertions  of  disaffirmance  and  then 
making  contract  to  convey  to  third  party  is  a  sufficient  disaffirmance  of  a 
conveyance  by  an  infant.  White  v.  Flora,  2  Tenn.  420,  432.  And  aban- 
donment of  possession,  etc.,  with  suit  to  recover  back  consideration  money, 
is  also  a  sufficient  disaffirmance  of  a  conveyance  to  an  infant.  Kerr  v.  Bell, 
44  Mo.  120,  125 ;  Baker  v.  Kennett,  54  Mo.  82. 

An  infant  cannot,  however,  avoid  liis  contract  without  refunding  the  con- 
sideration. Bigelow  V.  Kinney,  3  Vt.  353;  Kerr  v.  Bell,  44  Mo.  120,  125  (per 
Wagner,  J.);  Highley  i\  Barron,  49  Mo.  103.  And  if  he  would  avoid  the 
contract,  he  must  wliolly  avoid  it ;  he  cannot  retain  the  part  beneficial  to 
liimself.     Roberts  v.  Wiggin,  1  N.  11.  73. 

It  has  been  held  that  an  iufunt  feme  covert,  who  has  joined  with  her  hus- 
band in  a  mortgage  of  her  ])roperty,  miglit  plead  infancy  as  a  defence  in  the 
foreclosure  suit,  although,  ordinarily,  an  infant  cannot  avoid  her  deeds  until 
she  reaches  majority.     Schneider  c.  Staihr,  20  Mo.  209. 

^  A  contract  of  a  minor  cannot  be  avoided  by  the  other  contracting  party. 
Monaghan  v.  Agricultural  Fire  Ins.  Co.,  53  Mich.  238. 

-Contracts  as  to  personalty.  —  An  infant's  contracts  as  to  personalty 

61 


*38  BY  WHOM  TERMS   GRANTED.  [Cn.  I.  S.  19 

die  under  age  (/).  To  avoid  a  lease  by  an  infant  under 
which  the  lessee  is  in  possession  upon  the  lessor  attaining 
t^yenty-one/  some  act  of  notoriety,  ex.  gr.,  ejectment,  entry, 
or  demand  of  possession  is  requisite :  the  mere  execution  of 
a  new  lease  to  another  lessee  is  not  sufficient  to  divest  the 
estate  created  by  the  first  lease  ((/).  If  when  of  age  he 
receives  any  rent  payable  after  he  became  of  age,  he  thereby 
ratifies  the  lease  from  the  day  of  its  execution  (e).  A  mort- 
gage of  the  land  to  the  lessee  by  a  deed  reciting  the  lease 
amounts  to  a  ratification  (/i).  Subject  to  the  above  qualifica- 
tion, all  gifts,  grants  or  deeds  made  by  infants,  by  matter  in 
deed,  or  in  writing,  which  take  effect  by  delivery  of  his  hand, 
are  voidable  by  himself,  by  his  heirs,  and  by  those  who  have 
his  estate  (^).  The  words  "take  effect"  are  the  essential 
part  of  the  definition,  and  exclude  letters  of  attorney,  or 
deeds  which  delegate  a  mere  power  and  convey  no  inter- 
est Qk').  An  infant  cannot  appoint  an  agent,  and  therefore 
his  next  friend  cannot  bind  him.  An  infant  appointing  an 
agent  to  make  a  lease  is  not  bound  by  such  lease,  nor  by  his 
ratification  of  it.  The  lease  of  an  infant,  to  be  good,  must 
be  his  owii  personal  act  (/). 

in  Maddon  f.  Wliite,2  T.  R.  159,  that  (0  Perk.    chap.    i.   sec.   12;    Bac. 

a  lease  for  the  benefit  of  the  .infant  Abr.    tit.    Leases    (B.)  ;     Baylis     v. 

binds   him,   seems    to    be    exploded.  Dineley,   3   M.   &   S.   477 ;    2   Prest. 

See  Piatt  on  Leases,  Vol.  I.,  p.  ol.  Conv.  248. 

(/)  4  Cruise,  74,  s.  67.  (i)  Zouch  d.  Abbot  v.  Parsons,  3 

(//)  Slator  1-.  Brady,  14  Ir.  Com.  L.  Burr.  1804. 
R.  61 ;  Slator  v.  Trimble,  Id.  342.  (/)  Doe  d.  Thomas  v.  Roberts,  16 

(h)  Storry  v.  Johnson,  2  Y.  &  C.  M.  &.  VV.  778. 
386. 

are  voidable  by  him  during:  infancy,  Stafford  v.  Roof,  9  Cow.  626;  Bool  v. 
Mix,  17  Wend.  119,  132  (per  Bronson,  J.);  lioyt  v.  Wilkinson,  57  Vt.  404 ; 
McCarthy  v.  Henderson,  138  Mass.  310;  Freeman  v.  Nichols,  138  Mass.  313 
(holdinf^  that  a  plea  of  infancy  is  a  disaffirmance).  It  is  held  that  he  cannot 
(ordinarily)  avoid  his  deeds  of  realty  durinfi  minority,  Schneider  v.  Staihr, 
20  Mo.  2(i9,  271  (per  Scott,  J.,  althouf,di  he  held  infancy  oi  feme  covert,  might 
be  set  up  as  defence  to  suit  to  foreclose  mortgage).  Bool  v.  Mix,  17  Wend. 
(N.  Y.)  119,  131  (per  Bronson,  J.)  ;  Stafford  v.  Roof,  9  Cow.  (N.  Y.)  02(i  (per 
Jones,  Chan.).  The  heirs  anil  other  legal  representatives  of  a  minor  may  dis- 
affirm his  contracts  during  mitiority.  Siiarp  v.  Robertson,  76  Ala.  343;  III. 
Land  &  Loan  Co.  v.  Bonner,  75  111.  315,  321,  322. 

'The  age  of  majority.  —  By  tlie  common  law  twenty-one  is  the  age  of 
majority  for  both  sexes,  in  some  American  states  women  become  of  age  at 
eighteen,  as  Illinois,   Iowa,    Minnesota,    Missouri,   Nebraska,  Nevada,  Ohio^ 

62 


Ch.  I.  S.  19.]  LEASES    BY   INFANTS.  *39 

Leases  in  gavelkind,  —  By  the  custom  of  gavelkind  an  in- 
fant seised  of  land  in  socage  may  at  the  age  of  fifteen  years 
make  leases  for  years,  which  bind  him  after  he  comes  of  age, 
inasmuch  as  the  custom  makes  the  age  of  fifteen  his  full  aofe 
for  that  purpose  (^»)- 

Leases  under  direction  court.  —  The  legal  and  practical 
difficulties  attaching  to  leases  by  infants  at  common  law  (%) 
were  almost  entirely  cured  by  the  act  11  Geo.  4  &  1  Will. 

4,  c.  65,  under  which  (ss.  16  and  17)  infants  were 
empowered  *to  grant  renewals  of  leases  under  the  [*39] 
direction  of  the  Chancery  Division  of  the  High 
Court,  obtained  on  their  own  petition  or  that  of  their  guard- 
ians (o) ;  and  the  court  was  authorized  to  direct  leases  of 
land  belonging  to  infants  when  it  was  to  the  benefit  of  the 
estate  (p).  In  either  case  there  was  no  restriction  upon  the 
term  to  be  granted  to  the  lessee,  which  might  be  such  as 
the  court  should  direct. 

By  sect.  31  of  the  act,  leases  granted  under  it  were  as 
valid  as  if  the  infant  had  been  of  full  age.  The  court  had 
power  under  this  act  to  sanction  a  building  lease  of  an 
infant's  freehold  estate  when  he  was  seised  in  fee  simple  in 
reversion  after  a  life  estate  by  the  courtesy  vested  in  his 
father  (5'). 

This  act  is  not  expressly  repealed,  and  is  expressly  re- 
ferred to  in  an  Order  of  Court  (R.  S.  C,  1883,  Order  LV., 
rule  2)  made  after  the  commencement  of  the  Settled  Land 
Act,  1882.  But  ss.  59  and  60  of  that  act  appear  to  impliedly 
repeal  it  so  far  at  all  events  as  the  term  for  which  the  lease 
may  be  made.  We  will  presently  consider  the  effect  of  this 
and  other  acts,  but  must  first  deal  shortly  with  leases  by 
guardians. 

(m)  Co.  Lit.  45  b.  (p)  Re  Spencer,  37  L.  J.,  Ch.  18; 

(n)  See  Smith,  L.  &  T.,  2d  ed.,  p.  17  L.  T.,  N.  S.  200. 

61;  Piatt  on  Leases,  Vol.  I.,  p.  29.  (9)  Re  Letchford,  L.  R.,  2  Ch.  D. 

(0)  Judicature  Act,  1873,  s.  34 ;  R.  719;  45  L.  T.,  Ch.  530. 

5.  C.  Ord.  LV.,  r.  2,  sub-r.  9. 

Oregon,  and  Vermont.  In  some  instances  it  is  declared  that  women  shall  be 
deemed  of  age  on  being  married.  Tyler  on  Infancy  and  Coverture  (2d  ed.) 
sec.  3. 

63 


*39  BY   WHOM   TERMS    GRANTED.  [Ch.  I.  S.  20. 

Sect.  20. —  By  Guardians. 

Division  of  subject.  —  Guardians  are  either  :  —  1.  Guar- 
dians in  socage  or  by  the  common  law ;  ^  2.  Testamentary 
cfuardians  under  the  statute  12  Car.  2,  c.  24 ;  3.  Guardians 
by  nature  ;  4.  Guardians  for  nurture  ;  5.  Guardians  by  elec- 
tion ;  6.  Guardians  appointed  by  the  Chancery  Division  of 
the  High  Court.  Of  these  the  Guardians  appointed  by  the 
Court  are  of  the  first  practical  importance,  and  testamentary 
guardians  come  next ;  guardianship  of  any  of  the  other  kinds, 
so  far  as  regards  property,  has  little  more  than  a  historical 
value. 

Leases  by  guardians  in  socage.  —  1.  A  guardian  in  socar/e,^ 
or  by  the  common  law,  is  a  person  appointed  by  the  law,  in 
respect  of  the  freehold  lands  descended  to  the  infant,  so  that 
where  no  freehold  lands  descend  there  can  be  no  such  guar- 
dian (r)  :  and  tliis  guardianship  devolves  upon  such  of  the 
next  of  kin  to  whom  the  inheritance  cannot  descend  (s).  It 
ceases  at  the  age  of  fourteen  years ;  ^  and  the  father  may 
also  supersede  the  authority  of  the  guardian  by  appointing  a 
testamentary  guardian  under  12  Car.  2,  c.  24.* 

(r)  Bac.   Abr.   tit.  Leases   (I.  9)  ;  (.s)  1  Blac.  Com.  461 ;   Cole  Ejcc. 

Shopland  r.  Ryoler,  Cro.  Jac.  55,  99 ;       582. 
1  Blac.  Com.  401. 

'Guardians  appointed  by  court.  —  "A  guardian  appointed  by  the 
Orpiiaii's  Court  .  .  .  supplies  the  place  both  of  a  guardian  for  nurture  and  a 
guardian  in  socage."  Per  Kirlvpatrick,  C.  J.,  in  Van  Doren  v.  Everitt,  5  N.  J.  L. 
400,  402. 

-Guardians  in  socage.  —  A  guardian  in  socage  might  sell  real  estate, 
and  was  not  obliged  to  ajjply  for  directions  in  every  particular  case.  Field  v. 
SchiellVlin,  7  Johns.  Ch.  (N.  Y.)  150,  154  (per  Kent,  Ciian.).  A  guardian  in 
socage  may  lease  the  real  estate  of  the  infant.  Byrne  v.  Van  Hoesen,  5  Johns. 
(N.  Y.)  CO,  07  {}ier  Curiam);  Field  v.  Schieffelin,  7  Johns.  Ch.  (N.  Y.)  160, 
154  (per  Kent,  Chan.)  ;  Holmes  v.  Seely,  17  Wend.  (N.  Y.)  75,  78.  A  mother 
who  takes  possession  of  infants'  realty  was  held  prinui  ftirie  to  do  so  as  guar- 
dian in  socage.  Byrne  v.  Van  Iloescn,  5  Johns.  00,  (i7  ;  Jackson  ?-.  Vreden- 
burgh,  1  Id.  159,  lO:}  (per  Tompkins,  J.)  ;  Beecher  v.  Crouse,  19  Wend.  300; 
Syiv.>ster  r.  Ralston,  .'31  Barb.  (N.  Y.  Supreme  Ct.)  280,  280  (per  Pratt,  J.). 

•■'  Chancellor  Kent  says,  that  the  authority  of  a  guardian  in  socage  continues 
after  the  age  of  fourteen  if  the  infant  does  not  elect  a  new  guardian.  Byrne 
V.  Van  Hoesen,  5  Johns.  (\.  Y.)  00,  07;  Holmes  v.  Seely,  17  Wend.  (N.  Y.) 
75,  78  (prr  Nel.son,  Ch.  J.). 

^  Testamentary  guardians.  —  The  father  has  generally  in  this  coun- 
try  statutory   jiower   to   ai)poiul  a   testamentary  guardian   for  his   children. 

64 


Ch.  I.  S.  20.]  LEASES    BY   GUARDIANS.  *40 

To  enable  guardians  in  socage  to  take  especial  care  of  the 
infant  and  his  property,  the  law  has  invested  thein, 
not  with  a  hare  authority  *  only,  but  also  with  an  [*40] 
interest^  till  the  guardianship  ceases  (i),  and  to  pre- 
vent abuse,  the  law  has  made  them  accountable  to  the  infant, 
either  when  he  comes  to  the  age  of  fourteen  years,  at  which 
time  the  authority  of  the  guardians  terminates,  or  at  any 
time  after,  as  the  infant  thinks  fit ;  ^  and  therefore  their 
authority  and  interest  extend  only  to  such  things  as  may 
be  for  the  benefit  of  the  infant,  and  whereof  they  may  give 
an  account.  During  the  time  the  guardianship  exists,  a 
guardian  in  socage  may  make  leases  for  years  in  his  own 
name,  as  any  other  who  has  an  interest  in  lands  may  do; 
for  he  is  quasi  dominus  pro  tempore  and  the  lessee  may  main- 
tain ejectment  on  such  leases  (m).  If  he  makes  leases  for 
years  to  continue  beyond  the  time  of  his  guardianship,  such 
leases  seem  not  to  be  absolutely  void  by  the  infant's  coming 
of  age,  but  only  voidable  by  him  if  he  thinks  fit;  conse- 
quently the  infant,  when  he  comes  of  age,  may  by  acceptance 
of  rent,  or  other  act,  make  such  leases  good  and  unavoid- 
able (.-c).  The  lease  will  be  determined  by  the  death  of  the 
infant,  and  also  by  the  death  of  the  guardian  (_?/). 

By  testamentary  guardians.  —  2.  A  testamentarj^  guardian, 
or  one  appointed  pursuant  to  12  Car.  2,  c.  24,  ss.  8,  9,  10,  11, 
is  the  same  in  office  and  interest  as  a  guardian  in  socage,  but 
his  authority  continues  until  the  infant  attains  the  age  of 

(0  Co.  Lit.  87  b;  R.  v.  Oakley,  10  Plowd.  293;  Bac.  Abr.  tit.  Leases  (I. 

East,    494;     Eyre    v.    Countess     of  9) ;  Willis  r.  Whitewood,  1  Leon.  822 ; 

Sliaftesbury,  2  P.  Wms.   108;    R.   i'.  K.   v.  Oakley,  10  East,  494;    Keilw. 

Sherrington,  3  B.  &  Ad.  714;  R.  v.  4Gb;  Cole  Ejec.  582. 

Sutton,  3  A.  &  E.  597.  (x)  Bac.  Abr.  tit.  Leases  (L  9). 

(k)  Wade  v.  Baker,  1   Ld.   Rayni.  (y)  Balder   v.  Blackborn,  Brownl. 

131;    Hutt.    IG;    Osborn    r.    Garden,  79. 

Robinson  v.  Zollinger,  9  Watts.  1G9,  171;  Jones  r.  "Ward,  10  Yerg.  (Tenn.) 
IGO,  1G8;  Corrigan  (•.  Kiernan,  1  Bradf.  (N.  Y.  Surrogate)  208,  210  (per 
Curiam).  One  cannot  appoint  testamentary  guardian  for  his  nephews,  Brig- 
ham  V.  Wheeler,  8  Met.  127,  nor  for  his  grandchildren,  Hoyt  v.  Hilton, 
2  Edw.  (N.  Y.)  202,  oven  though  making  bequests  or  devises  to  them. 

^  A  lease  by  a  guardian  in  socage  is  voidable  after  the  infant  reaches 
the  age  of  fourteen  years  by  the  new  guardian  if  one  is  then  appointed.  Snook 
!•.  Sutton,  10  N.  J.  L.  133;  limerson  v.  Spicer,  4G  N.  Y.  594. 

65 


*40  BY    WHOM   TERMS   GRANTED.  [Ch.  I.  S.  2Q 

twenty-one  years  (z)  ;  ^  and  it  seems  clear  that  a  lease  by 
him  stands  on  the  same  footing  as  a  lease  by  a  guardian  in 
socage,  with  the  additional  advantage  to  the  lessor  that  the 
period  of  minority  is  extended  from  fourteen  to  twenty-one 
years  (a).  Special  guardians,  by  custom  of  London  and 
other  places,  do  not  fall  within  the  statute  (i). 

By  guardians  by  nature.  —  3.  Guardians  by  nature  are  the 
father,  of  his  heir,  heiress,  or  heiresses,  and  in  some  cases 
the  mother,  until  the  age  of  twenty-one  years  (c).'^  They 
may  perhaps  possess  the  power  of  leasing  at  will,  but  not  for 
a  term  (rf). 

By  guardians  for  nurture.  —  4.  The  father  or  mother  is 
guardian  of  all  the  children  for  nurture  until  they  attain 
the  age  of  fourteen  years  (e).  A  guardian  for  nurture  can- 
not make  any  leases  for  years,  either  in  his  own  name,  or 
in  the  name  of  the  infant,  for  he  has  only  the  care  of  the 
person  and  education  of  the  infant ;  for  there  may  be  such 

(s)  1    Blac.   Com.   462  ;   Bedell   v.  (h)  Sect.  10. 

Constable,  Vaugh.  179;  Roe  d.  Parry  (t)  1  Blac.  Com.  461  ;  R.  v.  Thorp, 

V.  Hodgson,  2  Wils.  129;   Cole  Ejec.  Cartli.  384. 

583.  ((/)  Pigot  V.  Garnish,  Cro.  Eliz.  678, 

(a)  Smith,   L.   &    T.   59;    Roe    v.  734. 

Hodgson,  2  Wils.  129,  so  far  as  it  is  (e)  1    Blac.    Com.    401 ;    Roacli    i-. 

an  authority  to  the  contrary,  is  not  Garvan,  1  Ves.  158;  3  Co.  R.  38. 
law.  See  Piatt  on  Leases.Vol.  I.,  p.  370. 

^  Termination  of  guardianship.  —  A  testamentary  guardian  continues  in 
autliority  till  full  age  of  male,  and  full  ago  or  marriage  of  female.  Robinson 
?;.  Zollinger,  9  Watts  (Pa.)  109,  171;  Jones  v.  Ward,  10  Yerg.  (Tenn.)  100, 
168.  Marriage  in  some  states  terminates  minority  of  /'eme  sole,  Tyler  on  In- 
fancy and  Coverture  (2d  ed.)  sec.  3  ;  and  in  some  states  she  becomes  of  age 
at  eighteen  years  (Illinois,  Iowa,  Minnesota,  Missouri,  Nebraska,  Nevada, 
Ohio,  Oregon,  and  Vermont).  Marriage  (ordinarily)  ipso  facto  terminates 
guardianship  of  woman,  lier  husband  (at  common  law)  becoming  tiiereafter 
her  guardian.  Porch  v.  Fries,  18  N.  J.  Eq.  204,  207  ;  Bartlett  r.  Cowles,  15 
Gray,  445. 

-  Guardians  by  nature.  —  A  guardian  by  nature  has  the  care  and  custody 
of  the  infant's  {)erson,  but  im  autiu>rity  over  tiie  realty  ami  personalty.  Genet 
?'.  Tailmadge,  1  Johns.  Ch.  (N.  Y.)  3,4  {per  Kent,  Chan.)  ;  Miles  v.  Boyden,  3 
Pick.  213,  217  {per  Putnam,  J.).  For  example,  a  father  (as  such)  cannot 
collect  a  legacy  payable  to  his  child.  Miles  v.  Boyden,  3  Pick.  213,  217.  He 
cannot  as  guardian  by  nature  collect  a  legacy,  but  may  as  guardian  aj)i)ointed 
by  court.  Genet  v.  Tailmadge,  1  Johns.  Ch.  (N.  Y.)  3,  4.  A  mother  cannot 
(as  guardian  by  nature)  convey  infant's  projjcrty,  Kendall  v.  Miller,  9  Cal. 
591,  nor  discharge  a  mortgage  lien,  Perkins  v.  Dyer,  0  Ga.  401. 


Ch.  I.  S.  20.]  LEASES    BY    GUARDIANS.  *41 

guardian,  though  *  the  infant  has  no  hinds  at  all,     [*41] 
although  in  such  a  case  there  cannot  be  a  guardian 
in  socage  :  but  such  guardian,  it  seems,  may  make  leases  at 
will  (/). 

5.  Guardians  by  election.  —  An  infant  seised  of  freehold 
lands,  and  being  unprovided  with  a  testamentary  guardian, 
may,  on  attaining  fourteen  years,  elect  a  guardian  to  act 
until  he  attains  twenty -one  (,^).^  This  guardianship,  like 
that  of  socage,  involves  a  similar  power  of  leasing  the  estate 
of  the  infant  (/i). 

Guardians  appointed  by  high  court.  —  From  a  very  early 
period  guardians  have  been  appointed  by  the  Court  of  Chan- 
cery ^  under  a  power  which  by  the  Judicature  Act,  1873, 
s.  34,  is  exercisable  by  the  Chancery  Division  of  the  High 
Court.^     Guardians  so  appointed  might,  by  virtue  of  11  Geo. 

(/)  Willis    V.   Whitewood,   Owen,  (g)  1  Blac.  Com.  402 ;  Co.  Lit.  87 

45 ;  1  Leon.  322;  Shopland  v.  Radlen,  b;  2  Atk.  624;  1  Ves.  91. 
Owen,  115;  Cro.  Jac.  55,  98;   Godb.  (A)  Bac.    Abr.   tit.   Leases   (I.  9); 

143 ;  4  Leon.  238 ;  Pigot  v.  Garnish,  Pitcairn  v.  Ogbourne,  2  Ves.  375. 
Cro.  Eliz.  G78 ;  Bac.  Abr.  tit.  Leases 
(1.9). 

^  Choice  of  guardians.  —  The  power  of  an  infant  to  choose  a  guardian 
at  the  age  of  fourteen  is  not  absolute,  but  subject  to  the  discretion  of  the 
court.  A  guardian  appointed  by  the  court  prior  to  that  age  will  continue 
till  the  minor  is  twenty-one,  imless  a  new  one  is  nominated  satisfactory  to  the 
court,  or  he  is  otherwise  removed  for  good  cause  shown.  Matter  of  Dyer, 
5  Paige  (N.  Y.)  634;  Matter  of  Nicoll,  1  Johns.  Ch.  (N.  Y.)  25;  Dibble  v. 
Dibble,  8  Ind.  307;  Ham  v.  Ham,  15  Gratt.  (Va.)  74;  Exp.  Graffenreid, 
Harper's  Eq.  (S.  C.)  107.  In  Perry  v.  Brainard,  11  Ohio,  442,  and  Campbell 
V.  English,  Wright  (Ohio)  119,  it  was  held  that  guardianship  of  minor  female 
expired  in  Ohio,  by  operation  of  law,  when  she  became  twelve  years  of  age. 
As  we  have  seen  (ante,  p.  40,  note  2),  the  right  of  electing  new  guardian  at 
fourteen  does  not  exist  if  the  father  has  appointed  a  testamentary  guardian. 

-  Guardians  in  chancery.  —  A  guardian  in  chancery,  according  to  Chan- 
cellor Kent,  has  unlimited  power  over  the  personalty,  but  cannot  convey  the 
realty  absolutely  without  special  authority  of  court.  Field  v.  Schieffelin,  7 
Johns.  Ch.  (N.  Y.)  150,  154. 

3  Varieties  of  guardians.  —  The  principal  varieties  of  guardianship  in 
America,  are,  guardianship  by  nature;  guardianship  by  appointment  of  court 
(either  probate,  surrogate,  orphans',  chancery,  etc.),  or  testamentary  guardian- 
ship. A  guardian  by  nature  (as  wc  have  seen)  has  the  care  of  the  person,  but 
virtually  no  control  over  the  property  of  the  infant,  unless  also  either  guardian 
by  appointment  of  court.  Genet  c.  Tallmadge,  1  Johns.  Ch.  (N.  Y.)  3,  4, 
testamentary  guardian,  Corrigan  v.  Kiernan,  1  Bradf.  (N.  Y.  Surrogate,  208, 
210,  or  guardian  in  socage,  Byrne  v.  Van  Hoesen,  5  Johns.  (N.  Y.)  GQ,  67; 

67 


*41  BY    WHOM   TERMS   GRANTED.  [Ch.  I.  S.  20. 

4  &  1  "Will.  4,  c.  65,  s.  17,  but  not  otherwise  (z),  make  such 
leases  as  the  court  should  direct  without  fine,  which  leases 

(i)  See  Simpson  on  Infancy,  p.  333. 

Beecher  v.  Crouse,  19  Wend.  (N.  Y.)  306;  Holmes  r.  Seely,  17  Id.  75,  78; 
Jackson  v.  Vredenburgh,  1  Johns.  (N.  Y.)  159,  163 ;  Sylvester  v.  Ralston,  31 
Barb.  (N.  Y.  Supreme  Ct.)  286,  289. 

Guardians  by  appoiutment  of  court.  —  Guardians  by  appointment  of 
court  are  subdivided  into  guardians  appointed  before  the  age  of  fourteen, 
without  the  election  of  minor,  and  guardians  appointed  thereafter  by  his  elec- 
tion. The  powers  of  guardians  appointed  by  the  court,  and  the  powers  of 
testamentary  guardians  (of  course),  are  regulated  more  or  less  by  the  statutes 
of  the  different  states  extending  or  limiting  the  common  law  powers  of 
guardians. 

Power  to  grant  leases.  —  Generally'  they  have  full  authority  over  the 
personalty,  Field  r.  Schieft'elin,  7  Johns.  Ch.  (N.  Y.)  150,  154  (pei-  Kent,  Chan.)  ; 
Chapman  v.  Tibbits,  33  N.  Y.  289,  290;  and  the  control  of  the  realty,  but  not 
the  power  to  dispose  of  it  absolutely  without  special  authority  of  court,  Field 
V.  Schieffelin,  7  Johns.  Ch.  (N.  Y.)  150,  154  (per  Kent.  Chan.);  Chapman  v. 
Tibbits,  33  N.  Y.  289,  290  (per  Brown,  J.);  Appeal  of  Stoughton,  88  Pa.  St. 
198,  201.  Generally  a  guardian  has  power  to  lease  the  realty  during  the  con- 
tinuance of  his  authority  as  guardian,  Jones  v.  Ward,  10  Yerg.  (Ttnn.)  160, 
168 ;  Hughes'  Minors'  Appeal,  53  Pa.  St.  500 ;  Appeal  of  Stoughton,  88  Pa.  St. 
198,  201  (per  Gordon,  J.,  though  he  cannot  without  approval  of  court  make 
an  oil  lease  because  that  effects  the  realty)  ;  Hicks  v.  Chapman,  10  Allen 
(Mass.)  463  (oral  lease  of  real  estate);  Campau  v.  Shaw,  15  Mich.  227,  232 
(jier  Christiancy,  J.);  Palmer  v.  Oakley,  2  Doug.  (Mich.)  433,  465  (per 
Whipple,  J.),  and  see  post. 

Termination  of  guardianship.  —  Guardianship  is  terminated  by  the 
death  of  the  ward,  Norton  r.  Strong,  1  Conn.  65;  by  the  death  of  the  guardian, 
Jolinson  I'.  Carter,  16  Mass.  443 ;  by  the  marriage  of  infant  feme  (as  well  as 
other  causes),  Brick's  Estate,  15  Abb.  Pr.  (N.  Y.)  12;  Shutt  v.  Carloss,  1  Ired. 
Eq.  (N.  C.)  232;  Porch  v.  Fries,  18  N.  J.  Eq.  204;  and  the  husband  then 
becomes  (at  common  law)  guardian  of  his  wife,  having  power  to  grant  leases 
of  her  realty,  voidable  by  her  upon  his  deatli  or  by  her  heirs  upon  her  death, 
Porch  V.  Fries,  18  N.  J.  Eq.  204,  207  (per  Curiam). 

Duration  of  leases.  —  Guardians  cannot  make  leases  extending  beyond 
the  period  of  their  autiiority  valiil  against  either  the  ward  or  a  new  guardian. 
Campau  ?;.  Shaw,  15  Mich,  (cannot  lease  be^'ond  life  of  ward)  227  ;  Putnam  v. 
Ritchie,  6  Paige  (N.  Y.)  390,  399  (per  Walwortli,  Chan.)  ;  Snook  v.  Sutton, 
10  N.  J.  L.  133,  and  Emerson  v.  Spicer,  46  N.  Y.  594  (voidable  by  new  guar- 
dian appointed  after  fourteen)  ;  Van  Doren  v.  Everitt,  5  N.  J.  L.  460,  462 
(per  Kirkpatrick,  C.  J.).  A  lease  extending  beyond  the  period  of  a  guardian's 
authority  is  not  void,  but  voidable  merely.  It  may  be  afllrmed  by  the  ward, 
and  the  ward  can  recover  rent  accruing  during  the  guardianship  and  subse- 
quently in  the  same  suit.  Ross  v.  Gill,  1  Wash.  (Va.)  87.  A  guardian  having 
but  a  bare  power  without  an  interest  in  the  estate,  may  make  a  lease  whicli 
will  be  valid  as  between  liimself  and  the  lessee.  Mansur  v.  Pratt,  101  Mass. 
60,  62  (per  Hoar,  J.). 

Guardians'  duty.  —  Ordinarily,  it  is  not  only  in  the  power,  but  is  the 
guarilian's  duty  to  lease  Ids  ward's  realty.  Huglies'  Minors'  Appeal,  53 
Pa.  St.  5U0,  503  (per  Read,  J.)  ;  Jones  v.  Ward,  10  Yerg.  (Tenn.)   160,  168. 

68 


Cn.  I.  S.  21.]        LEASES    BY   TUUSTEE   FOR   INFANTS.  *42 

may  be  made  to  extend  beyond  minority  (k).  We  have 
already  seen  that  this  statute  is  not  expressly  repealed,  and 
it  is  no  doubt  ill  force  so  far  as  the  Settled  Land  Act,  1882, 
is  not  in  conflict  with  it. 

The  Settled  Estates  Act,  1877,  s.  44,  empowered  guar- 
dians to  exercise  on  behalf  of  infants  all  j^owers  given  by  the 
act,  and  the  words  would  include  the  leasing  powers,  as  to 
which  see  sect.  4,  ante.     This  enactment  also  is  unrepealed. 

Guardians  for  purposes  of  Agricultural  Holdings  Act.  —  The 
25th  section  of  the  Agricultural  Holdings  Act,  1883,  pro- 
vides that  where  a  landlord  is  an  infant  the  county  court 
may,  on  the  application  of  any  person  interested,  appoint  a 
guardian  for  the  purposes  of  that  act. 


Sect.  21.  —  Bi/   Trustee  for  Infants. 

Conveyancing  Act,  1881.  —  The  Conveyancing  and  Law  of 
Property  Act,  1881,  44  &  45  Vict.  c.  41,  by  s.  41  provided 
that :  — 

"  Where  a  person  in  his  own  right  seised  of  or  entitled  to 
land  for  an  estate  in  fee  simple  is  an  infant,  the  land  shall 
be  deemed  to  be  a  settled  estate  within  the  Settled  Estates 
Act,  1877."  We  have  already  seen  what  powers  of  leasing 
were  given  by  that  act  (?),  and  also  that  s.  49  of  the  same 
act  further  provided  that  all  powers  given  by  the  act  might 
be  exercised  by  cfuardians  on  behalf  of  infants. 

*  The  Settled  Land  Act,  1882,  45  &  46  Vict.  c.  38,     [*42] 
though  not  repealing  the  above  enactments,  appears 
by  ss.  59,  60  to  supersede  them.     These  sections  are  :  — 

(k)  Anstey  v.  Hobson,  1  Sm.  &  G.  (/)  Ante,  sect.  4. 

r)Ou. 

He  will  be  charged  with  the  estimated  rental  if  he  fail  to  lease  his  ward's  lands 
when  it  was  his  duty  to  do  so.  A  guardian  cannot  maintain  a  writ  of  entry  in 
his  own  name  to  recover  the  ward's  realty,  but  the  ward  must  sue  in  his  own 
name  by  his  next  friend.     Jennings  r.  Collins,  99  Mass.  29,  31. 

Guardian's  personal  liability.  —  Guardians  will  be  personally  liable  if 
they  take  assignments  to  themselves  upon  covenants  running  with  the  land, 
the  term  "  guardian  "  being  regarded  as  a  descriptio  jjersonariim.  Haniicn  v. 
Ewalt,  18  Pa,  St.  9. 

69 


*42  BY   WHOM   TERMS   GRANTED.  [Cii.  I.  S.  21. 

Settled  Land  Act.  —  Sect.  59,  "  where  a  person  who  is  in  his 
own  right  seised  of  or  entitled  in  possession  to  land,  is  an 
infant,  then  for  purposes  of  this  act  the  land  is  settled  land, 
and  the  infant  shall  be  deemed  tenant  for  life  thereof." 

And  by  sect.  60,  "  where  a  tenant  for  life,  or  a  person 
having  the  powers  of  a  tenant  for  life  under  the  act  (?«)'  i^ 
an  infant,  or  an  infant  would,  if  he  were  of  full  age,  be  a 
tenant  for  life,  or  have  the  powers  of  a  tenant  for  life  under 
this  act,  the  powers  of  a  tenant  for  life  under  this  act  may 
be  exercised  on  his  behalf  by  the  trustees  of  the  settlement, 
and  if  there  are  none,  then  by  such  person  and  in  such 
manner  as  the  Court,  on  the  application  of  a  testamentary 
or  other  guardian  or  next  friend  of  the  infant,  either  gener- 
ally or  in  a  particular  instance,  orders." 

Section  60  appears  to  comprise  within  its  terms  the  case 
of  an  infant  tenant  in  fee  simple,  and  therefore  somewhat 
to  abridge  the  powers  of  guardians.  By  the  act  of  1881 
as  read  with  the  act  of  1877,  they  might  themselves  lease 
without  any  application  to  the  Court;  by  the  act  of  1882, 
an  application  to  the  Court  would  seem  to  be  necessary 
if  the  land  proposed  to  be  demised  should  be  unsettled,  and 
although  guardians  are  pointed  at  as  being  proper  persons  to 
make  the  application,  the  leasing  power  is  not  to  be  exer- 
cised as  a  matter  of  course  by  them,  but  only  in  case  of  their 
being  directed  to  exercise  it  by  the  Court.  In  case  the  land 
should  be  settled,  and  there  should  be  trustees,  such  trustees 
could,  it  is  conceived,  exercise  the  leasing  powers  without 
any  application  to  the  Court. 

Management  of  demised  land  by  trustees.  —  Trustees  acting 
for  infants  liave  special  powers  of  management  conferred 
upon  them  by  s.  42  of  the  Conveyancing  Act,  1881.  Amongst 
these  powers  is  a  power  "  to  make  allowances  to  and  arrange- 
ments with  tenants  and  others,  and  to  determine  tenancies, 
and  to  accept  surrenders  of  leases  and  tenancies,  and  gener- 
ally to  deal  with  the  land  in  a  proper  and  due  course  of 
management." 

(m)  See  8.  58  of  tlu'  act,  giving  powers  of  tlie  act  to  tenants  in  tail, 
and  other  limited  owners. 

70 


Cii.  I.  S.  22.]     LEASES   BY   Oil   FOR   MARRIED   WOMEN.  *43 

Sect.  22.  —  By  or  for  Married   Women} 

Married   "Women's  Property  Act.  —  The   Married   Women's 

Property  Act,  1882,  4o  &  4G  Vict.  c.  75,  repealing  and 
with  extensive  amendments  re-enacting  the  Married 
*  Women's  Property  Act,  1870  («),  places  married  [*-13] 
women  in  respect  of  making  leases  of  land  not  sub- 
ject to  marriage  settlement  as  well  as  in  respect  of  their  sepa- 
rate property  generally  (leases,  however,  being  nowhere 
specitically  mentioned  in  the  act),  in  the  same  position  as  if 
they  were  unmarried.^  This  act  has  abolished  the  old  com- 
mon law  doctrine  that  a  wife  had  no  legal  existence  apart 
from  her  husband. 

(n)  Tiie  act  of  1870  appears  to  unsettled  land  under  the  term  "  prop- 
have  allowed  independent  demises  of       erty,"  in  ss.  1,  7,  and  8. 

1  Changes  in  rights  of  married  women.  —  IModern  American  law  con- 
curs with  the  English  in  modifying  materially  the  status  of  married  women. 
In  some  tilings  slie  has  a  separate  legal  existence.  The  changes  have  not 
been  uniform.  To  understand  her  present  status,  it  is  necessary  first  to  un- 
derstand tlie  common  law,  and  then  the  special  statutory  changes  in  the  sev- 
eral states  (for  the  common  law  still  prevails  except  so  far  as  it  has  been 
expressly  changed). 

Harris,  in  his  treatise  on  Contracts  by  Married  Women  (sec.  5),  says  that 
Mississippi  was  the  pioneer  state  in  introducing  the  changes  of  the  new 
system. 

She  passed  the  first  statute  Feb.  15,  18o9,  following  it  by  another,  Feb.  28, 
1846.  New  York,  Pennsylvania,  and  other  states  followed  in  1848 ;  Ten- 
nessee, Kentucky,  New  Hampshire,  Michigan,  and  Vermont  in  1850.  Statutes 
have  since  been  passed  for  all  the  other  states,  territories,  and  federal  district. 

2  The  present  la-w^  in  Massachusetts.  —  In  Massachusetts  it  is  pro- 
vided that  "  a  married  woman  may  make  contracts  .  .  .  as  if  she  were  sole, 
except  .  .  .  with  her  husband."  Pub.  Sts.  (1882)  Ch.  147,  sec.  2.  She  can- 
not'with  him.  Wilson  v.  Bryant,  134  Mass.  291  ;  Gay  i'.  Kingsley,  11  Allen, 
345  ;  Bowker  v.  Bradford,  140  Mass.  521 ;  Roby  v.  "piielon,  118  Mass.  541 ; 
Woodward  v.  Spurr,  141  Mass.  28o. 

Marriage  in  that  state  nullifies  a  contract  with  a  husband  previously  made, 
Abbott  V.  Winchester,  105  Mass.  115,  unless  made  in  contemplation  of  mar- 
riage, Miller  v.  Goodwin,  8  Gray,  542;  Pub.  Sts.  Ch.  147,  sec.  2. 

Husband  and  wife  cannot  transfer  property  to  each  other,  except  that 
husband  may  convey  personalty  to  a  limited  amount.  Pub.  Sts.  Ch.  147,  sec. 
2,  necessary  for  her  own  use,  etc. ;  and  if  he  give  her  a  piano,  it  is  a  question 
for  the  jury  whether  it  is  necessary  considering  her  station  in  life,  etc. 
Hamilton  v.  Lane,  138  Mass.  358.  He  may  make  a  donatis  causa  mortis  to 
her,  Marshall  ;'.  Jaquith,  134  Mass.  138;  or  convey  realty  indirectly  to  her 
through  a  third  person,  Motte  v.  Alger,  15  Gray,  322,  323. 

Marriage  no  longer  operates  as  a  gift  of  her  personalty  or  use  of  realty  to 

71 


*43  BY   WHOM   TERMS   GRANTED.  Ch.  I.  S.  22. 

Lease  by  husband  and  wife.  —  At  common  law  a  lease  hy 
deed  made  by  the  husband  and  wife  of  the  wife's  freeholds, 
was  good  during  the  coverture  (o).^  Upon  the  death  of  the 
husband  in  the  wife's  lifetime  it  became  voidable  hj  her; 
and  might  be  confirmed  by  her  acceptance  of  rent  becoming 
due  after  the  husband's  death,  or  the  like  (j»),  her  executors 
having  power  to  sue  for  such  rent  (^q).  If  the  husband  sur- 
vived his  wife  and  became  tenant  by  the  curtesy,  the  lease 
was  good  as  against  him  during  his  life  or  until  the  end  of 
the  term,  which  first  happened.  But  if  he  did  not  become 
tenant  by  the  curtesy  (not  having  ever  had  any  issue  by  his 
wife  which  might  by  possibility  have  inherited),  the  lease, 
upon  the  wife's  death,  became  void  as  against  her  heir  at  law. 
When  the  husband  did  not  become  tenant  by  the  curtesy,  he 

(o)  AViscot's  ease,  2  Co.  R.  61  b ;  Cro.  Jac.  5G3 ;  Doe  d.  Collins  r.  Wel- 

Bac.  Abr.  tit.  Leases  (C.  1)  ;  Tolcr  v.  ler,  7  T.  R.  47B;  Parry  v.  lliiuUe,  2 

Slater,  L.  R.,  3  Q.  B.  42  ;  37  L.  J.,  Q.  Taunt.  180;  2  Wins.  Saund.  180,  note 

B.  33.  (9). 

(;))  Henstead's  case,  5  Co.  R.  10;  (7)  Toler  v.  Slater,  L.  R.,  3  Q.  B. 

Co.  Lit.  55  b;  Greenwood  v.  Tyber,  42;  37  L.  J.,  Q.  B.  33. 


her  husband.  Pub.  Sts.  Ch.  147,  sec.  1.  Husband  and  wife  since  St.  1885, 
c.  237,  are  no  longer  joint  tenants  (with  exclusive  rifjhts  in  husband.  Pray  v. 
Stebbins,  141  Mass.  211))  of  realty  conveyed  to  them  jointly. 

She  has  the  entire  control  of  her  own  realty  and  personalty,  and  can  con- 
vey it  without  the  joinder  or  consent  of  her  husband,  subject  to  liis  rifjht  of 
curtesy  if  they  have  had  issue  born  alive.  Pub.  Sts.  Ch.  147,  sec.  1  ;  Libby 
V.  Chase,  117  Mass.  105. 

1  Wife's  realty  at  common  laAW.  — At  common  law  the  control  of  the 
wife's  realty  and  the  rents  and  profits  thereof  belonged  to  the  husband  during 
coverture.  Bartlett  v.  Cowles,  15  Gray,  445,  440;  Chipp  v.  Stoughton,  10 
Pick.  402.  And  they  migiit  be  levied  u])on  for  his  debts.  Litchfield  v.  Cud- 
worth,  15  Pick.  23.  For  them  the  husband  could  sue  in  liis  own  name  or 
jointly  with  his  wife.  Clapp  v.  Stoughton,  10  Pick.  402,  409  {per  Wilde,  J.)  ; 
Decker  v.  Livingston,  15  Johns.  (N.  Y.)  479,  482  {per  Spencer,  .1.).  For 
rents  accruing  prior  to  the  coverture,  although  the  husband  had  right  to 
reduce  theui  to  possession,  he  coulil  only  sue  jointly  witii  liis  wife.  Decker 
V.  Livingstone,  supra.  Ordinarily,  uncollected  rents  accruing  during  cover- 
ture belonged  to  the  personal  representative  of  the  deceased  husband,  and 
could  not  be  collected  by  the  surviving  wife.  Clapp  p.  Stoughton,  10  Pick. 
402,  409.  Un(U)llected  rents  of  jiroporty  demised  l)V  her  before  marriage 
might  be  collected  by  lier  after  her  lius])and's  deatii.  D.inicds  (;.  Richardson, 
22  Pick.  505,  570.  Such  rents,  until  collection,  being  mere  choses  in  .action, 
{]ier  Shaw,  C  .T.),  would  rem;iin  (like  otlier  personal  property  of  the  wife, 
Hayward  v.  Ilaywani,  20  I'ick.  517,  not  exjjressly  or  implieilly  reduced  to 
possession  by  the  husband)  property  of  the  wife  notwithstanding  the  coverture. 

72 


Ch.  I.  S.  22.]     LEASES   BY   OR   FOR   MARRIED   WOMEN.  *43 

could  not  distrain  or  sue  for  the  rent  whicli  became  due  after 
his  wife's  death,  under  a  demise  made  by  them  both  or  by 
him  on  her  behalf  (?').i 

Without  deed.  —  A  lease  by  husband  and  wife  without  deed 
was  void  as  against  the  surviving  wife,  for  it  could  not  bo 
said  to  be  her  lease  (s),  but  it  was  good  during  the  coverture 
if  the  term  continued  so  long  (^). 

By  husband  alone.  —  If  a  husband  seised  of  lands  in  right 
of  his  wife  made  a  lease  for  years  by  deed,  the  term  did 
not  become  void  on  his  death,  but  only  voidable  by  the  entry 
of  the  widow  (w).^ 

By  wife  alone.  —  Leases  made  by  a  wife  without  the  con- 
currence of  her  husband  and  not  in  pursuance  of  an  express 
power,  were  at  common  law,  absolutely  void,^  and  could  not 
be  confirmed  (.t-),  and  a  lessee  taking  a  lease  from  an   un- 

(r)  Howe   v.  Sorrott,  4    H.   &   N.  (f)  Batenian    v.   Allen,    Cro.    Eliz. 

723;    28    L.    J.,    Ex.    325;    Hill    v.  438;  2  Co.  K.  61  b. 

Saunders,    2   Bing.    112;    S.    C.    (in  (m)  Jordan  f.  Wykes,  Cro.  Jac.  332; 

error),  4  B.  &  C.  529.  Smallman    v.    Agborow,    Id.   417;    3 

(.s)  Walsal  I'.  Heath,  Cro.  Eliz.  656;  Bulst.  272;  Browning  and  Bceston's 

Greenwood  v.  Tyber,  Cro.  Jac.  564;  case,  Plowd.  65. 

Dyer,  91  b,  146  b;  2   Wms.   Saund.  (.r)  Goodrightr?.  Carter  y.Straphan, 

180  a,  n.  Cowp.  201 ;  Lofft,  763. 

1  And  the  husband,  during  coverture,  could  not  distrain  in  his  own  name 
for  rent  accruing  prior  to  the  coverture,  without  joining  his  wife.  Decker  v. 
Livingston,  15  Johns.  (N.  Y.)  479,  482,  although  he  might  for  rent  accru- 
ing subsequently  (per  Spencer,  J.). 

-  Deeds  of  married  -women.  — The  separate  deed  of  a  married  woman 
at  common  law  was  not  only  voidable,  but  absolutely  void.  Ela  r.  Card,  2 
N.  H.  175,  176;  Fowler  v.  Shearer,  7  Mass.  14;  Concord  Bank  v.  Bellis,  10 
Cush.  276.  And  even  those  statutes  which  allowed  her  to  join  with  lier  hus- 
band in  deeds  of  her  own  property  were  innovations  upon  the  common  law. 
Wliitbeck  V.  Cook,  15  Johns.  (N.  Y.)  483,  490,  491  (per  Spencer,  J.).  Such 
deeds,  while  they  enabled  her  to  divest  herself  of  her  interest  in  the  land, 
did  not  enable  her  to  bind  herself  by  the  covenants.  The  covenants  bound 
her  husband  only.     Whitbeck  v.  Cook,  15  Johns.  (N.  Y.)  483,  490,  491. 

In  short,  prior  to  the  passage  of  the  enabling  acts  of  the  several  states,  a 
married  woman  was  absolutely  incapable  of  contracting.  Parsons  v.  Plaisted, 
13  Mass.  189;  1  Story  on  Contracts  (5th  ed.)  sec.  144. 

^Leases  by  married  ■women.  —  Leases  by  a  married  woman,  without 
the  concurrence  of  her  husband,  were,  at  common  law,  absolutely  void. 
Murray  v.  Emmons,  19  N.  H.  483. 

It  has  been  held  that  a  lease  by  a  married  woman  might  be  sustained  as 
a  lease  of  the  husband  made  under  an  implied  agency.  Doe  d.  Andrews  ?-•. 
Taylor,  5  Allen  (N.  B.)  144,  146.  But  in  Melley  ;;.  Casey,  99  Mass.  241, 
where  a  married  woman  had  made  a  lease  for  three  years  of  her  separate 

73 


*44  BY   WHOM  TERMS    GRANTED.  [Ch.  I.  S.  22. 

married  woman  became  bound,  after  the  marriage,  to  pay  the 
rent  to  the  husband  (^). 

Before  marriage.  —  But  a  wife  might,  before  marriage,  in 
exercise  of  an  express  power,  grant  valid  leases  without  the 

concurrence  of  her  husband. 
[*44]  *  Lease  of  wife's  leaseholds.  —  As  to  the  wife's  lease- 

holds, at  common  law  a  husband  might  dispose  of  all 
Ills  wife's  interest  therein  b}-  demise :  ^  so  he  might  dispose  of 
the  interest  in  a  term  which  they  had  jointly  (2).  He  might 
also  dispose  of  part  of  his  wife's  interest:  thus  he  might 
demise  for  a  part  of  the  term  rendering  rent,  and  the  rent 
would  go  to  his  executor  or  administrator,  though  his  wife 
survived  (a),  notwitlistanding  the  reversion  survives  to  the 
wife  (6)  ;  but  as  to  the  residue  of  the  term,  whereof  the  hus- 
band made  no  disposition  in  his  lifetime,  the  wife,  if  she 
survived,  was  entitled  to  it :  because  as  to  that,  the  law  was 
left  to  take  effect,  as  it  would  have  done  for  the  whole,  if  he 
had  not  prevented  it  by  such  his  disposition  of  part  (c).  If 
the  husband  died  before  the  wife,  he  could  not  bequeath  her 
chattels  real  bj-  will  (tZ),  but  if  he  survived  lier  they  became 
his  own  absolute  property  {e}.     If  the  husband,  having  an 

(y)  Tracy  v.  Dalton,  Cro.  Jac.  617.  (/))  Sym's  case,  Cro.  Eliz.  33. 

(2)  Com.  Dig.  tit.  Baron  and  Feme  (f)  Bac.  Abr.  tit.  Baron  and  Feme 

(E.  2).  (C.  2) ;  Sym's  case,  Cro,  Eliz.  33. 

(a)  Id.;    Co.  Lit.  46  b,  .351   a;    1  (^0  Plowd.  418. 

Roll.  343,  1.   15;   Bla.xton   v.   Heath,  (f)  Co.  Lit.  300  a,  351  a,  n.  (1). 
Poph.  145. 

property,  and  subsequently  had  joined  with  her  husband  in  conveying  the  prop- 
erty expressly  subject  to  the  lease,  the  court  held  the  lease  was  void,  and  the 
grantee's  title  under  the  the  deed  was  clear  from  the  incumbrance  of  the  lease. 

This  decision  was  in  1868,  and  the  law  of  Massachusetts  has  since  been 
changed  (Sts.  1874,  Ch.  184,  now  Pub.  Sts.  Ch.  147,  sees.  1,  2,  3,  4,  5,  &c.),  so 
that  a  wife  has  now  full  power  over  her  own  property,  except  that  she  cannot 
contract  with  her  husband,  &c. 

In  Alabama,  a  married  woman,  if  her  disabilities  have  been  removed  by 
chancellor's  decree  under  the  code,  may  now  sue  in  her  own  name  upon  leases 
of  lier  own  property.  Warren  v.  Wagner,  75  Ala.  188.  And  in  Maine,  a 
lease  by  a  wife  to  her  husband  is  valid.  Freeman  v.  Underwood,  (W)  Me.  220, 
there  being  no  disability  in  that  state  to  prevent  lier  contracting /KJ/ia^H/fi  with 
her  husbiuid. 

'Lease  to  wife.  —  A  lease  to  the  wife  enured  to  the  husband's  benefit 
unless  he  dissente<l  to  it.  In  ejectment  brought  against  him  by  his  wife's 
lessor,  he  was  estopped  to  deny  tlie  lessor's  title  unless  he  liad  disallirmcd  the 
lease.     Lucas  v.  Brooks,  18  Wall.  430,  451. 

74 


C'H.  I.  S.  22.]      LEASES    BY   OR   FOR   MARRIED   WOMEN.  *45 

interest  in  his  wife's  real  estate  during  their  joint  lives, 
created  a  term  out  of  that  interest,  the  reversion  was  in  him 
only,  and  not  in  his  wife  also  (/). 

The  husband  might  demise  his  wife's  leaseholds,  and  there- 
by confer  an  immediate  interest  and  possession,  or  he  might 
underlet  for  a  term  to  commence  even  after  his  death  (</}  , 
and  it  was  good  though  the  wife  survived  (A). 

Statute  law  prior  to  act  of  1882.  —  The  Fines  and  Recover- 
ies Abolition  Act  (3  &  4  Will.  4,  c.  74,  ss.  77-88)  allowed 
leases  to  be  made  by  wives  with  their  husband's  concurrence, 
by  deed  acknowledged  by  the  wives  in  manner  directed  by 
that  act,  and  the  Settled  Estates  Act,  1877,  40  &  41  Vict.  c. 
18,  replacing  a  similar  provision  of  the  Settled  Estates  Act, 
1856,  allowed  a  husband  seised  in  right  of  his  wife  of  any 
settled  estates  or  entitled  to  unsettled  estates  as  tenant  by 
the  curtesy  or  in  right  of  a  wife  seised  in  fee,  without  any 
application  to  the  court  to  demise  such  lands  for  not  more 
than  21  years  subject  to  the  restrictions  and  exceptions  in 
that  act  mentioned. 

Lease  by  married  -woman  under  Settled  Land  Act,  1882.  — 
We  have  already  seen  (i)  the  provisions  empowering  tenants 
for  life  to  make  leases,  which  are  contained  in  the  important 
Settled  Land  Act,  1882.  Special  provision  for  the  case  of  a 
married  woman  who  is  a  tenant  for  life  is  made  by  s.  61  of 
that  act,  the  effect  of  which  is  that  if  the  married  woman 
be  entitled  for  her  separate  use  or  under  the  Married  Wo- 
men's Property  Act,  1882,  she  may  exercise  the  powers  of 
the  act  without  her  husband,  but  if  otherwise,  then  she  and 
her  husband  together  may  exercise  those  powers,  and 
that  a  restraint  on  *  anticipation  in  the  settlement  [*45] 
shall  not  prevent  the  exercise  of  that  power. 

Saving  for  marriage  settlement.  — It  is  provided  expressly  by 
s.  19  of  the  Married  Women's  Property  Act,  that  nothing  in 
that  act  shall  interfere  with  any  marriage  settlement  made  or 

(/)  Harcourt  v.  Wyman,  3  Exch.  Bac.  Abr.  tit.  Baron  and  Feme  (C. 

817'.  '  2)  ;  1  Roll.  Abr.  344  ;  Herbin  v.  Chard, 

((/)  Herbin    v.    Chard,    Poph.   96;  Popli.  96. 
Grute  V.  Locroft,  Cro.  Eliz.  287.  (/)  Ante,  sect.  4. 

(A)  Grute  v.  Locroft,  Cro.  Eliz.  287  ; 

75 


*45  BY    WHOM   TERMS    GRANTED.  [Ch.  I.  S.  23. 

to  be  made  respecting  the  property  of  any  married  woman ; 
but  the  effect  of  the  61st  section  of  the  Settled  Land  Act, 
1882,  appears  to  be  to  allow  a  husband  and  wife  to  demise 
without  the  intervention  of  the  trustees  of  their  married 
settlement,  although  the  settlement  may  expressly  provide 
for  such  intervention. 


Sect.  23.  —  By  Lunatics  and  their  Committees. 

By  idiots  aud  lunatics.  —  Leases  made  by  idiots,  or  persons 
non  compotes  mentis,  are  prima  facie  binding,  but  may  be 
avoided  (Jc).^  Generally  speaking,  a  contract  made  by  a 
lunatic  is  binding  on  him,  unless  it  be  proved  that  the  other 
party  knew  of  his  insanity  and  took  some  unfair  advantage 
of  it  (I)?     A  lease  made  during  a  lucid  interval  cannot  be 

(h)  Co.  Lit.  247  a;  Beverley's  case,  487;  4  E.xch.  17;  Beavan  v.  M'Don- 

4  Co.  R.  123;  Yates  v.  Boen,  3  Stra.  nell,  9  Exch.  309;   10  E.xch.  184;  23 

1104.  L.  J.,  Ex.  94,  326;  Elliott  v.  Ince,  7 

(/)  Brown  v.  Joddrell,  1  Moo.  &  M.  De  G.  M.  &  G.  475. 
105;    Molton    v.    Caniroux,   2   Exch. 

1  Contracts  of  insane,  &c.  —  There  is  no  such  tiling?  as  perfect  sanity  or 
perfect  insanity.  "We  can  not,  therefore,  say  of  any  particular  party  tliat 
he  is  absolutely  incapable  of  contracting."  1  Wharton  &  Stille's  Med.  Jur. 
(4th  ed.)  sec.  98. 

A  person  is  presumed  to  be  sane,  unless  shown  to  be  insane.  Howe  !•. 
Howe,  99  Mass.  88;  Hix  v.  Whittemore,  4  Met.  (Mass.)  545.  Where  tlie 
existence  of  habitual  insanity  has  been  once  shown  to  exist,  it  is  presumed 
to  continue;  otherwise,  if  of  a  temporary  character  (/>t'/-  Dewey,  J.),  in  Hi.x 
V.  Whittemore,  4  Met.  (Mass.)  545,  547. 

Contracts  made  by  persons  while  under  guardianship,  as  insane,  or  as 
drunkards  and  spendthrifts,  are  absolutely  void,  Griswold  c.  Butler,  3  Conn. 
227,  231;  Westmoreland  v.  Davis,  1  Ala.  299,  301  {per  Collier,  C  J.)  ;  Wait 
V.  Maxwell,  5  Pick.  (Mass.)  217;  Fitzhugh  v.  Wilcox,  12  Barb.  (N.  Y. 
Supreme  Ct.)  235;  Wadsworth  v.  Sherman,  14  Id.  169;  Pearl  v.  M'Dowell, 
3  .1.  J.  Marsh.  (Ky.)  658  {per  Buckncr,  J.);  Mason  v.  Felton,  13  Pick. 
(Mass.)  206;  because  the  law  lias  ])laced  their  estates  in  the  hands  of  guar- 
dians, and  conclusively  presumes  them  incapable  of  contracting,  a  presump- 
tion which  does  not  arise  when  they  are  not  under  guardianship. 

Wharton  says,  "  When  there  is  no  capacity  to  contract, — ;.e.  in  cases  of 
idiocy  and  frenzy,- — ^then  there  is  no  contract,  for  want  of  a  consenting  mind." 
1  Whart.  Law  of  Contratjts,  sec.  102. 

Contracts  for  necessaries  made  by  insane  jx-rsons,  like  similar  contracts 
made  by  infants,  are  not  voidable.  La  Rue  v.  Gilkyson'a  Ex'r,  4  Pa.  St.  376; 
Van  Horn  r.  Hann,  .39  N.  .T.  L.  207  ;  even  though  made  while  under  guardian- 
ship, Sawyer  v.  Lufkin,  56  Me.  308. 

^  A  contract  with  an  insane  person,  though  bona  jUlc/xi  injurious  to  him, 

76 


Ch.  I.  S.  23.]      LUNATICS    AND   THEIR    COMMITTEES.  *45 

impeached  on  the  ground  of  previous  or  subsequent  insan- 
ity (m).^ 

By  committees  of  lunatics.  —  By  16  &  17  Vict.  c.  70,  s.  113, 
the  committee  of  a  lunatic  may  make,  surrender  and  renew 
leases  in  the  name  and  on  the  behalf  of  the  lunatic,  -under 
the  direction  of  the  Lord  Chancellor.^  So  he  may  execute 
conveyances,  mortgages  and  other  deeds  and  contracts  in  the 
name  and  on  behalf  of  the  lunatic,  as  the  Lord  Chancellor 
shall  order  (w).  So  he  may  in  like  manner  make  leases  or 
underleases  for  years,  for  the  erection  of  buildings  or  for 
repairing  existing  buildings,  or  otherwise  improving  tlie  prop- 
erty, or  for  farming  or  other  purposes  (o) ;  and  ''every  sur- 
render, lease,  agreement,  deed,  conveyance,  mortgage  or 
other  disposition  granted,  accepted,  made   or  executed  by 

(m)  1  Dow,  Pari.  Cas.  177 ;  Fry,  ss.  (o)  Sect.  129;  18  &  19  Vict.  c.  13. 

161,  162.  General  Order  in  Lunacy,  7th  Novem- 

(n)  Sects.  116-138.  ber,  1853,  No.  54. 

and  not  made  in  a  lucid  interval,  is  voidable,  even  though  contracting  party 
were  not  put  upon  inquiry.  Seaver  v.  Phelps,  11  Pick.  304.  And  surely  it  is 
voidable  if  he  was.     Lincoln  v.  Buckniaster,  32  Vt.  652. 

Imbecility,  not  amounting  to  lunacy  or  idiocy,  alone  is  not  sufficient  to 
render  a  contract  voidable.  Odell  v.  Buck,  21  Wend.  (N.  Y.)  142 ;  Jackson 
V.  King,  4  Cow.  (N.  Y.)  207.  But  imbecility  concurring  with  inadequacy  of 
price  may  be  sufficient  to  make  it  so.  Tracey  v.  Sacket,  1  C)hio  St.  54 ;  Cruise 
V.  Christopher's  Adni'r,  5  Dana  (Ky.)  181 ;  Cadwallader  r.  West,  48  Mo.  483, 
And  surely  it  will  if  combined  with  undue  influence.  AVhitehorn  v.  Hines, 
1  Munford  (Va.)  557 ;  Buffalow  v.  Buffalow,  2  Dev.  &  B.  Ch.  (N.  C.)  241. 

1  Contracts  made  in  lucid  intervals  are  valid ;  but  if  the  insanity  be  of 
a  confirmed  or  habitual  character,  the  burden  is  upon  the  party  alleging  the 
lucid  interval  to  prove  it.     1  Whart.  &  Stillc's  Med.  Jur.  (4th  ed.)  sec.  2. 

Latent  insanity  does  not  avoid  contract,  if  at  time  of  executing  it  lunatic 
possessed  a  contracting  mind.     1  Whart.  Law  of  Contracts,  sec.  107. 

"  The  question  of  mental  incompetency  rarely  presents  itself  detached 
fiom  that  of  undue  influence."     Same,  sec.  104, 

Wills  executed  by  insane  persons  under  guardianship,  if  restored  or  other- 
wise having  a  sufficiently  sound  mind,  are  valid.  Stone  i\  Damon,  12  Mass. 
487;  Breed  v.  Pratt,  18  Pick.  115,  117;  Crowninshield  z;.  Crowninshield,  2 
Gray,  524,  531  (per  Thomas,  J.).     It  is  otherwise  as  to  contracts. 

'^Leases  by  committees,  &c. — Doubtless,  a  guardian  or  committee  of 
insane  person  can  grant  leases  under  directions  of  a  court  of  chancery.  Bus- 
well  on  Insanity,  sec.  114.  A  committee  is  a  bailiff  or  agent  of  the  court. 
Matter  of  Otis,  101  N.  Y.  580;  Shaffer  i-.  List,  114  Pa.  St.  486,  489  {per  Ster- 
rett,  J.);  Lane  v.  Schermerhorn,  1  Hill  (N.  Y.)  97,  98  {per  Bronson,  J.). 
Ordinarily  he  has  power  to  grant  leases  (subject  to  statutory  regulations  of 
different  states).  Hicks  v.  Chapman,  10  Allen,  463,  464.  But  he  cannot  if 
expressly  or  impliedly  restrained  by  statute.     Treat  v.  Peck,  5  Conn.  280,  284. 

77 


*46  BY   WHOM   TERMS   GRANTED.  [Ch.  I.  S.  24. 

virtue  of  this  act  shall  be  valid  and  legal  to  all  intents  and 
purposes,  as  if  the  person  in  whose  name  or  on  whose  behalf 
the  same  was  granted,  accepted,  made,  or  executed,  had  been 
of  sound  mind,  and  had  granted,  accepted,  made  or  executed 
the  same"  (p).  It  seems  to  be  the  practice  in  every  case, 
first  to  obtain  the  approval  of  a  master  in  lunacy  to  the  pro- 
posed lease,  and  then  an  order  of  the  Lords  Justices  confirm- 
ing the  master's  report,  and  directing  the  lease,  as  settled 
and  approved  of  by  the  master,  to  be  executed  by  the 
[*46]  *  committee,  upon  the  lessee  executing  a  counterpart. 
In  Wynne,  In  re  (5'),  however,  eighteen  months'  pos- 
session under  an  agrreement  for  a  lease  with  the  agfent  of  the 
committee  was  held  sufficient  to  entitle  the  tenant  to  specific 
performance,  although  the  sanction  of  the  master  in  lunacy 
had  not  been  applied  for. 

Mode  of  execution.  —  The  ordinary  form  of  execution 
would  seem  to  be  the  execution  by  the  lunatic  by  his  com- 
mittees, but  an  execution  by  the  committees  themselves  is 
sufficient  if  the  lunatic  be  made  a  party  to  the  lease  (r). 

Repairs  and  allowances.  —  By  15  &  16  Vict.  C.  48,  commit- 
tees of  lunatics  may  direct  repairs  and  improvements  of  or 
upon  the  land  of  lunatics,  or  make  allowance  to  the  tenant 
executing  the  same. 


Sect.  24.  —  By  Persons  under  Duress  or  Intoxicated. 

By  persons  under  duress.  —  All  deeds,  bonds  or  grants  made 
by  persons  under  duress  are  voidable  by  the  parties  them- 
selves that  make  them,  or  others  that  have  their  estates,  &c. 
Duress  of  imprisonment  is  deiined  to  be  where  one  is  man- 
ifestly imprisoned  or  restrained  of  his  liberty  contrary  to  law, 
until  he  executes  a  bond  or  deed  to  another  (.s).  Tlio  impris- 
onment must  be   illegal,  otherwise   there   is  no   duress  (Q. 

(p)  Sect.  1.39.  of  Hall,  V.  C,  L.  R.,  U  Ch.  D.  240; 

(7)  L.  R.,  7  Ch.  220;  20  L.  T.  400;  40  L.  J.,  Ch.  03(5;  42  L.  T.  486;  28 

W.  R.  348.  \V.  R.  770. 

(r)  Lawrie  v.   Locs,  L.   R.  7   App.  (s)  Knight    ami    Norton's    case,    3 

Cas.  10,  aflirminff  the  decision  of  the  Leon.  230. 
Court  of  Appeal,  and  reversing  that  (0  2  Inst.  482;  11  Q.  H.  117. 

78 


Cii.  I.  S.  25.]  LEASES   BY   CONVICTS.  *47 

Duress   of  goods  (especially  under  a  distress)  is  not  suffi- 
cient (w). 

By  persons  in  a  state  of  intoxication.  —  Intoxication  is  a 
good  defence  in  an  action  on  a  deed,  lease  or  grant,  or  an 
agreement,  provided  the  party  was  in  such  a  state  of  intox- 
ication as  not  to  know  what  he  was  doing  (a;).  But  the  con- 
tract is  voidable  only  and  not  void,  and  therefore  may  be 
ratified  when  the  party  becomes  sober  (?/).  If  through  the 
contrivance  and  management  of  the  party  obtaining  the  deed 
the  grantor  is  thrown  into  intoxication  for  the  purpose  of 
prevailing  on  him  to  execute  the  deed,  relief  may  be  admin- 
istered, on  the  ground  of  fraud  (2),  by  the  Chancery  Divis- 
ion of  the  High  Court  (a). 


*  Sect.  25.  —  By  Convicts.  [*47] 

At  common  law,  on  a  conviction  for  felony,  real  estate 
became  forfeited  to  the  crown,  but  not  without  attainder  (5). 
Under  a  demise,  therefore,  by  a  felon  after  attainder,  the 
lessee  had  a  good  title  against  all  but  the  crown  and  the 
lord  of  whom  the  land  was  held  (c) ;  and  the  crown  was 
said  to  be  entitled  to  hold  during  the  felon's  life  (cT). 
The  crown's  right  of  entry  might  be  exercised  or  enforced 
without  any  inquisition  being  taken  or  oiEce  being  found,  or 
actual  re-entry  (g).  An  assignment  by  a  felon  just  before 
trial,  without  consideration  or  value,  was  void  as  against  the 
crown  (/).    But  a  bona  fide  assignment  made  before  the  day 

(h)  Skeate   v.   Beale,   11   A.   &  E.  (a)  Judicature   Act,    1873,    s.    34, 

983;  Gulliver  v.  Cozens,  1  C.  B.  788;  subs.  3. 

Kearns  v.  Durell,  6  C.  B.  596;  6  D.  &  (6)  Cole  Ejec.  573. 

L-  357.  ((•)  J)oQ   (2.   Evans    or   Griffiths    ?'. 

(x)   Gore  V.  Gibson,  13  M.  &  W.  Pritchard,   5    B.    &   Ad.    765;    Cole 

623  ;  Pitt  V.  Smith,  3  Camp.  31 ;  But-  Ejec.  573. 

ler  V.  Mulvihill,  1  Bligli,  137.  (d)  Chamb.  L.  &  T.  46. 

(y)  Matthews  v.  Baxter,   L.   R.,  8  (e)  22  &  23  Vict.  c.  21,  s.  25. 

Ex.  132 ;  42  L.  J.,  Ex.  73.  (/)  Morewood  i-.  Wilks,  6  C.  &  P. 

(^)  Johnsons.  Medlicott,  3  P.  Wms.  144;  Shaw  r.  Bran,  1   Stark.  R.  319; 

139;  Cory  v.  Cory,  1  Ves.  19;  Nagle  In  re  Saunders,  4  Giff.  179;  32  L.  J., 

V.  Baylor,  3  Dru.  &  W.  60 ;    Say  v.  Ch.  224. 
Barwick,   1   V.   &  B.  195;   Butler  v. 
Mulvihill,  1  Bligh,  127. 

79 


*48  BY   WHOM   TERMS    GRANTED.  [Cii.  I.  S.  25. 

of  trial  (even  after  the  commission  day,  in  consideration  of  a 
pre-existent  debt  or  other  good  consideration,  Avas  valid  (^). 
Regulation  of  felon's  property  under  33  &  34  Vict.  c.  23.  — 
The  property  of  persons  who  have  been  convicted  of  treason 
or  felony  is  now  entirely  regulated  by  an  act  passed  on  the 
4th  of  July,  1870  (33  &  34  Vict.  c.  23),  by  which  forfeiture 
to  the  crown  is  abolished.  By  sect.  1  of  this  act  "  no  con- 
fession, verdict,  inquest,  conviction  or  judgment  of  or  for 
any  treason  or  felony  or  felo  de  se,  shall  cause  any  attainder 
or  corruption  of  blood,  or  any  forfeiture  or  escheat."  By 
sect.  9  the  crown  may  commit  the  custody  and  management 
of  the  property  of  any  convict,  i.e.  "any  person  against 
whom  judgment  of  death  or  penal  servitude  shall  have  been 
pronounced  or  recorded  upon  any  charge  of  treason  or 
felony "  (/t),  to  an  administrator,  upon  whose  appointment 
"all  the  real  and  personal  property,  including  choses  in 
action,  to  which  the  convict  was  at  the  time  of  his  convic- 
tion, or  shall  afterwards  while  he  shall  continue  subject  to 
the  operation  of  the  act,  become  or  be  entitled,  shall  vest  in 
such  administrator  for  all  the  estate  and  interest  of  such  con- 
vict therein  "  (sect.  10).  By  sect.  8  the  convict  is  disabled 
to  sue  or  alienate  property,  and  by  sect.  12  "  the  adminis- 
trator shall  have  absolute  power  to  let,  mortgage,  sell,  con- 
vey and  transfer  any  part  of  such  property  as  to  him  shall 
seem  fit."  By  sect.  18  the  property  reverts  to  the  convict  or 
his  representatives  on  the  completion  of  his  sentence,  pardon 
or  death.  By  sect.  21  an  interim  curator  may,  if  there  be  no 
administrator,  be  appointed  by  justices ;  and  by  sect.  24  such 
interim   curator   may   bring   and    defend   actions,  and   may 

"  receive  and  give  legal  discharges  for  all  rents,"  &c. 
[*48]     Property  acquired  by  a  convict  "  during  the  *  time 

wliich  he  shall  be  lawfully  at  large  under  licence," 
is,  b}^  sect.  30,  exempted  from  the  operation  of  the  act. 

Outlaws.  —  A  lease  made  ])y  an    outlaw   before  an  inqui- 

(<7)  Perkins    r.    Brndloy,    1     Ilaro,  from  forfeiture  by  the  act,  Imt  arc 

219;    Whitaker  ?•.  VVishey,   12  C   H.  otiicrwiso  imaffected  by  its  j)rovision8 

44  ;  Cliowne  r.  Baylis,  ;51  Beav.  .'Jal.  relatiii};  to  the  adiniiiistration  of  prop- 

(//)  Sect.  (i.    Persons  not  comprised  erty. 
within  this   definition    are    exempted 

80 


Ch.  I.  S.  2G.]        BY   EXECUTORS   AND   ADMINISTRATORS.  *48 

sition  taken  will  prevent  the  title  of  the  crown,  if  it  be  made 
bona  fide  and  upon  good  consideration,  but  not  if  it  be  in 
trust  for  the  outlaw  only  (<).  The  grant  of  a  person  out- 
lawed in  a  personal  action  was  good  against  all  but  the 
crown  (/c) ;  but  outlawry  in  civil  proceedings,  which  had 
long  been  obsolete,  was  abolished  by  the  Civil  Procedure 
Acts  Repeal  Act,  1879  (42  &  43  Vict.  c.  59).  The  Act  of 
1870,  above  mentioned  (see  sect.  1),  does  not  affect  "the 
law  of  forfeiture  consequent  upon  outlawry  in  criminal  pro- 
ceedings.'' 

Sect.  26.  —  By  Trustees  of  Bankrupts. 

A  trustee  of  a  bankrupt  seised  in  fee  may  demise  to  the 
same  extent  as  the  bankrupt  could.  A  trustee  of  a  bank- 
rupt lessee,  if  he  do  not  disclaim  the  lease,  and  if  the  lease 
contain  no  clause  of  forfeiture  on  bankruptcy  of  the  lessee 
has  a  similar  power  (J)} 


Sect.  27.  —  By  Executors  and  Administrators. 
A  lease  personal  property.  —  A  lease  for  a  term  of  years, 
however  long,  is  personal  property  in  the  hands  of  the  lessee 
by  the  law  of  England,  and  as  such  vests  in  the  executor.^ 
In  Scotland,  however,  it  is  otherwise.  By  the  law  of  Scot- 
land a  lease  vests  in  the  heir  of  the  lessee  at  his  death  (jri). 

(i)  Att.-Gen.   v.   Freeman,    Hardr.  (k)  Shep.  Touch.  232. 

101;    Hammond's    case,    Id.   176;    2  (/)  See  Ch.  VII.,  Sect.  8, /w.s^ 

Roll.  Abr.  808,  pi.  7  ;  King  d.  Poe  v.  (m)  See    Bain    v.   Brand,  L.  R.,  1 

Ball,  Ridg.  Lap.  &  Scho.  1)1.  App.  Ca.  762. 

^  In  New  Bruns'wick  an  assignee  cannot  terminate  his  liability  for  rent 
by  disclaimer  until  the  close  of  the  current  year.  Until  then  the  lessor's 
claim  for  rent  is  a  privileged  debt.  McLaughlin  v.  McLeod,  3  P.  &  B.  (N. 
B.)  539. 

2  Leases  for  years  are  personalty. — Wiley's  Appeal,  90  Pa.  St.  173; 
Green  v.  Green,  2  Redf.  (X.  Y.  Sur.)  408;  Murdock  v.  Ratclilf,  7  Ohio,  119; 
Reynold's  Heirs  v.  Commissioners,  &c.,  5  Ohio,  204;  Lewis's  Ilcirs  v.  Ringo,  3 
A.  K.  Marsh.  (Ky.)  247  ;  Faler  v.  McRae,  56  Miss.  227  ;  Webster  v.  Parker, 
42  Miss.  405;  Dillingham  v.  Jenkins,  7  S.  >&  M.  (Miss.)  479,  487;  Lessee  of 
Bisbee  v.  Hall,  3  Ohio,  449,  465;  Pugsley  i'.  Aiken,  11  N.  Y.  494;  Hollen- 
back  V.  McDonald,  112  Mass.  247,  249;  Gay,  Petitioner,  5  Mass.  419;  Chap- 
man j;.  Gray,  15  Mass.  439,  445;  Mayor  v.  Mabie,  13  N.  Y.  151,  159;  People 
V.  Westervelt,  17  Wend.  (N.  Y.)  674.  At  common  law  it  mattered  not  how 
long  the  term  might  be :  if  it  was  a  term  for  years,  it  was  personalty  and 

81 


*48  BY   WHOM  TEEMS   GRANTED.  [Cii.  I.  S.  27. 

Lease  by  executor.  —  Executors  and  administrators  may 
dispose  absolutely  of  terms  of  years  vested  in  them  in  right 
of  their  testators  or  intestates,^  or  may  lease  the  same  for  any 
fewer  number  of  years  ;  and  the  rents  reserved  on  such  leases 

passed  to  the  executor,  or  (People  v.  "Westervelt,  17  Wend.  (N.  Y.)  674,  and 
Lessee  of  Bisbee  v.  Hall,  3  Ohio,  449)  might  be  sold  on  execution  as  a  chattel 
without  right  of  redemption,  and  would  not  pass  as  realty  by  levy  on  land. 
Chapman  v.  Gray,  15  Mass.  439,  445. 

In  Gay,  Petitioner,  5  Mass.  419,  it  was  held  that  a  lease  for  999  years 
might  be  sold  by  administrator  as  a  chattel  without  a  license.  There  are 
mr.ny  cases  where  leases  for  ninety-nine  years  have  been  lield  chattels. 
Faler  v.  McRae,  56  Miss.  227;  Dillingliam  v.  Jenkins,  7  S.  &  M.  (Miss.)  479, 
487.  And  even  though  renewable,  Reynold's  Heirs  v.  Commissioners,  &c.,  5 
Ohio,  204;  or  even  if  renewable  forever,  Murdock  v.  Ratcliff,  7  Ohio,  119. 
But  it  has  since  been  held  tliat  under  the  statute  a  lease  for  ninety-nine  years, 
in  Oliio  renewable  forever,  was  for  certain  purposes  realty.  Northern  Bank 
V.  Roosa,  13  Oluo,  .334;  Loring  v.  Melendy,  11  Ohio,  355. 

In  Massachusetts  the  rule  has  been  changed  by  statute,  and  there,  when 
land  is  demised  for  one  hundred  years  or  more,  it  shall  be  regarded  as  an 
estate  in  fee  simple  so  long  as  fifty  years  remain  unexpired.  Pub.  Sts.  Ch. 
121,  sec.  1. 

A  life  estate  may  be  levied  upon  as  realty.  Chapman  v.  Gray,  15  Mass. 
4.39. 

In  Dillingham  v.  Jenkins,  supra,  p.  487,  Sharkej',  C.  J.,  said,  "  A  lease  for 
ninety-nine  years  is  of  no  higher  dignity  tlian  a  lease  or  term  for  one  year." 

Tiie  consequence  is  that  widow  and  heirs  cannot  bring  specific  i)erform- 
ance  upon  a  renewable  lease.  Reynold's  Heirs  v.  Commissioners,  &c.,  5 
Ohio,  204.  Neither  can  they  eject  a  subtenant  of  an  administrator.  Lewis's 
Heirs  v.  Ringo,  3  A.  K.  Marsh.  (Ky.)  247. 

1  Ordinarily  he  should  do  so  and  let  the  assignee  take  the  risks  as  to  the 
value  of  his  jjurchase.     Schouler's  Ex'rs  &  Admr's,  sec.  3-53. 

The  executor  is  liable  upon  tlie  covenants  of  the  deceased  lessee,  even 
though  beneficial  interest  have  passed  to  a  survivor.  Burns  c.  Brjan,  12 
App.  Cas.  184.  If  he  renew  a  renewable  lease,  he  will  be  charged  with  wliole 
term  as  assets.     Green  r.  Green,  2  Redf.  (N.  Y.  Sur.)  408. 

Executors,  if  they  occupy  the  demised  premises,  will  be  personally  liable 
for  tlie  rent.  Smiley  v.  Van  Winkle,  6  CaJ.  605,  606  {per  Murray,  C.  J.). 
In  England  an  executor  is  personiiUy  liable  if  he  take  possession  up  to  the 
lotting  value  of  the  premises  (In  re  Bowes,  37  Ch.  1).  128),  but  beyond  that 
he  is  not  liable  except  so  far  as  he  has  assets  (per  North,  J.,  p.  132). 

An  executor  is  not  liable  beyond  tlie  amount  of  assets,  if  lie  waive  the 
term  and  refuse  to  occupy.  Martin  v.  Black,  9  Paige  (N.  Y.)  641,  644  (per 
Walworth,  Chan.).  In  this  respect  he  is  like  a  receiver  (^per  Walworth,  Ciian., 
supra),  or  a  voluntary  assignee  wlio,  if  he  declini'S  to  accept  term,  is  not 
personally  liable.  Lewis  ii.  Burr,  8  Bosw.  (N.  Y.  Superior  Ct.)  140;  Jour- 
neay  v.  Brackley,  1  Hilt.  (N.  Y.  Sur.)  447;  Pratt  v.  Levan,  1  Miles  (Pa.) 
.158.  But  if  he  accept  and  occupy,  is  liable.  Young  v.  Peyser,  3  Bosw. 
(N.  Y.  Superior  Ct.)  .308;  Astor  v.  Lent,  0  Id.  612. 

In  Kngland  a  gift  in  will  of  k-ase  will  not  pass  a  freehold  interest  thougli 
subject  to  rent  charge.     In  re  Knight,  'M  Ch.  D.  618. 


Ch.  I.  S.  27.]       BY    EXECUTORS    AND   ADMINISTRATORS.  *49 

are  assets  in  their  liands,  and  go  in  a  course  of  administra 
tion  (w),  bnt  this  is  an  exceptional  mode  of  dealing  with  the 
assets,  and  those  who  take  a  title  in  that  way  must  take  it 
subject  to  the  question  whether  it  was  the  best  mode  of 
administering  the  assets  (o).  Executors  should  take  care 
not  to  enter  into  any  informal  agreement  for  a  lease  which 
cannot  be  enforced ;  otherwise  they  may  perhaps  be  charged 
with  any  loss,  as  arising  from  a  wilful  default  (p). 

*  Option  of  purchase.  —  Executors  and  administra-  [*493 
tors,  it  being  their  duty  to  realize  within  a  reasonable 
time,  ma}^  not  grant  a  sub-lease  with  option  of  purchase 
within  a  fixed  time.  If  they  do,  the  next-of-kin  can  prevent 
the  option  being  exercised.  This  was  held  by  the  Court  of 
Appeal  in  the  very  clear  but  hard  case  of  Oceanic  Steam 
Navigation  Co.  v.  Sutherbury  (^),  in  which  an  administrator 
possessed  of  a  term  of  75  years  granted  a  sub-lease  for 
21  years,  with  option  of  purchase  within  the  first  7  years, 
although  the  whole  transaction  was  for  the  benefit  of  the 
estate,  and  the  sub-lessees  had  expended  large  sums  in  build- 
ing in  reliance  on  their  supposed  power  to  purchase. 

Lease  before  probate.  —  An  executor  may  demise  before 
probate,  because  his  appointment,  estate,  and  power  are 
derived  from  the  will,  of  which  the  probate  is  merely  evi- 
dence (r)  ;  but  an  administrator  cannot  make  a  lease  until 
he  has  obtained  letters  of  administration  (s). 

Lease  by  one  of  several.  —  A  lease  by  one  of  several  exec- 
utors is  as  efhcacious  as  their  joint  demise  (^),  although  it 
purport  to  be  the  grant  of  all  (it)  ;  and  the  same  rule  applies 
to  administrators  (a;).    It  seems  that  if  three  executors  demise 

(n)  Bac.  Abr.  Leases  (I.  7).  tors   (A.);   1  Wms.  E.xors.  291,  595 

(o)  Per  Jessel,  M.  R.,  in  Oceanic,  (6th  ed.). 

&c.,  Co.  V.  Sutherbury,  L.  R.,  16  Ch.  (.s)  Wankford  r.  Wankford,  1  Salk. 

D.  at  p.  243.  .301 ;  Hudson  v.  Hudson,  1  Atk.  461 ; 

(p)  Connolly   v.   Connolly,    17    Ir.  1  Wms.  Exors.  595  (6th  ed.). 

Ch.  R.  208,  M.  R.                   "  (t)  Pannel  v.  Fcnn,  Cro.  Eliz.  347 ; 

(q)  L.  R.,  16  Ch.  D.  236;  50  L.  J.  Doe  d.  Hayes    v.  Sturges,    7    Taunt. 

Ch.  ,308;    43  L.   T.  743;    29  W.  R.  217. 

236.  (u)  Simpson  v.  Gutteridge,  1  Madd. 

(r)  Roe  d.  Bendall  v.  Summerset,  616. 

2W.  Blac.  692;  Roll.  Abr.  tit.  Execu-  (.r)  Jacomb    r.    Ilarwood,   2   Ves. 

sen.  265. 


*50  BY   "WTIOM   TERMS    GRANTED.  [Cii.  I.  S.  27. 

to  one  of  them  at  a  fixed  rent,  sueli  rent  may  be  distrained 
for(^). 

Assent  to  bequest  of  lease.  —  Previous  to  a  party  taking  a 
lease  from  an  executor,  he  should  ascertain  whether  the 
j^roperty  has  been  specifically  bequeathed  by  the  will ;  and 
if  so,  whether  the  executor  has  assented  to  such  bequest, 
for  if  so  his  right  to  grant  the  lease  is  gone,  and  the  legal 
interest  in  the  property  is  vested  in  the  legatee ;  and  conse- 
quently, as  the  executor  has  nothing  to  grant,  the  lease  will 
be  void,  and  the  legatee  may  maintain  ejectment  (s).  It  is 
well  settled,  however,  that  assent  to  a  bequest  for  life  of  a 
lease  is  an  assent  to  the  bequest  over  (a). 

Assent  of  executor  to  bequest  to  himself.  —  If  a  lease  be 
specifically  bequeathed  to  an  executor  for  his  own  use,  his 
assent  to  the  bequest  is  still  necessary,  and  if  his  acts  are 
referable  to  his  character  of  executor,  the}''  are  no  evidence 
of  assent  (5),  which  must  be  shown  by  some  act  referable  to 
his  character  of  beneficial  owner,  as  by  a  disposition  of  the 
lease  in  his  own  will  ((?).  Where  a  party  possessed  of  a  term 
as  administrator  makes  a  lease  and  appoints  an  executor  and 
dies,  his  executor  is  entitled  to  the  rent,  and  not  the  admin- 
istrator de  bonis  non  of  the  intestate  ((?). 
[_*50]  *  Leases  by  an  executrix  who  is  a  married  -woman.  — 

The  husband  of  a  woman  who  is  an  executrix  has  at 
common  law  a  joint  interest  with  her  in  all  the  effects  of  the 
deceased  ;  and  is  enabled  to  assume  the  whole  administration, 
and  to  act  in  it  to  all  purposes  without  her  consent ;  but  the 
wife  cannot  do  any  act  as  executrix  or  administratrix  with- 
out her  husband's  concurrence.  A  demise  by  her  alone, 
therefore,  cannot  at  common  law  be  supported ;  and  in  all 
leases  made  in  respect  of  such  executorship  and  administra- 

(y)  Cowper  v.  Flotclicr,  G  B.  &  S.  (n)  Stevenson  ?".  Mayor  of  Liver- 

464 ;  34  L.  J.,  Q.  B.  187.  pool,  L.  U.,  10  Q.  B.  at  p.  84. 

(z)  Paramour   v.   Yardley,   I'lowd.  (/))  Doe    d.    lliiycs    v.    Sturges,   7 

639;    Younp  v.   Holmes,   1   Stra.  70;  Taunt.  717. 

Doe  fl.  Lord  Say  and  Sele  v.  fiuy,  3  (r)  Fenton  v.  Clcgg,  0  Exch.  080. 

E!i8t,  120;    4  Plsp.   154;    Johnson  v.  (d)  Drew    ;•.    Bayly,  2    Lev.    100; 

Warrick,   17   C.    B.  510;    Fenton   v.  Norton  y.  Harvey,  1  Vcntr.  259. 
CletTfT,  1)  Exeh.  080;  Doe  r/.  Sturgess 
V.  Tatchc'll,  3  B.  &  Ad.  (i75. 

84 


Ch.  I.  S.  28.]    BY  MOKTGAGORS  AND  MORTGAGEES.       *50 

tion,  the  husband  must  be  the  demising  pin'ty  (e).  By  the 
18th  section  of  the  Married  Women's  Property  Act,  1882,  a 
married  woman  "  who  is  an  executrix  or  administratrix,  alone 
or  jointly  with  any  other  person,  of  the  estate  of  any  deceased 
person,  or  trustees,  alone  or  jointly,  of  property  subject  to 
any  trust,  may  sue  and  be  sued  without  her  husband,  as  if 
she  were  a  feme  sole."  This  section  gives  no  express  power 
to  demise  alone.  Whether  it  gives  such  a  power  impliedly 
is  very  doubtful.  It  is  conceived  on  the  whole  that  it  does 
not,  and  that  the  common  law  rule  above  stated  is  in  full 
force. 


Sect.  28.  —  By  Mortgagors  and  Mortgagees. 

(a)  Generally. 

Leases  before  the  mortgage.  —  Leases  granted  by  a  mort- 
gagor before  the  mortgage  are  valid  as  against  the  mortgagee, 
who  is  only  an  assignee  of  the  reversion  and  its  incidents  (/).^ 
The  tenants  under  such  leases  may  safely  continue  to  pay 
their  rents  to  the  mortgagor  until  they  receive  notice  of  the 
mortgage,  and  are  requested  to  pay  their  rent  to  the  mort- 
gagee (^).2 

(e)  Cham,  on  Leases,  85;    Arnold  (/)  Rogers  r.  Humphreys,  4  A.  & 

V.  Bidgood,  Cro.  Jac.  318;  Thrustout       E.  290,  313;  Cole  Ejec.  473. 
d.   Levick    v.    Coppin,   2   W.    Blac.  ((/)  4  Ann.  c.  16,  s.  10 ;   Cook  v. 

801.  Moylan,  1  Exch.  07 ;  5  D.  &  L.  701 ; 

Trent  v.  Hunt,  9  Exch.  14. 

^Mortgages:  subsequent,  and  prior  to  lease.  —  A  mortgagee  under 
a  mortgage,  given  subsequently  to  a  lease,  is  an  assignee  (or  mortgagee)  of 
the  reversion,  simpli/,  Comer  v.  Sheehan,  74  Ala.  452,  457  ;  Joplin  v.  Johnson, 
2  Kerrs.  (N.  B.)  541;  Johnston  v.  Riddle,  70  Ala.  219,  225  (per  Somerviile, 
J.).  He  certainly  has  no  greater  rights  than  the  mortgagor  or  than  an 
ordinary  reversioner,  and  in  some  respects  (under  the  theory  as  to  the  nature 
of  mortgages  prevailing  in  some  of  tlie  American  states)  has  less. 

"A  lease,"  says  Mr.  Jones,  "already  existing  at  the  date  of  the  mortgage, 
is  in  no  way  invalidated  by  the  giving  of  the  mortgage.  It  is  then  a  para- 
mount interest,  and  the  mortgage  is  subject  to  it."  1  Jones  on  Mort.  (3  ed.) 
sec.  772.     Otlierwise  as  to  leases  subsequent,  as  will  appear. 

Newall  V.  Wriglit,  3  Mass.  138,  152. 

2  Two  American  theories.  —  There  are  two  theories,  as  to  the  nature  of 
mortgages,  prevailing  in  Ainerica.  By  either  of  them,  under  leases,  either 
prior  or  subsequent  to  a  mortgage,  the  lessee  must  continue  to  paj'  rent 
to  the  mortgagor  \mtil  notified  to  pav  it  to  the  mortgagee.     Joplm  v.  John- 

85 


*50  BY    WHOM   TERMS    GRANTED.  [Ch.  I.  S.  28. 

Ejectment  by  mortgagor. — Before  the  Judicature  Act,  the 
mortgagor,  having  assigned  his  reversion  by  the  mortgage, 

son,  2  Kerrs.  (N.  B.)  541;  Johnston  v.  Riddle,  70  Ala.  219;  Souders  v. 
Vansickle,  8  N.  J.  L.  iJ13.  The  mortgagor  can  eject  a  stranger,  for  the  mort- 
gagor is  owner  of  the  mortgaged  property  against  all  the  world  except  the 
mortgagee.     Allen  v.  Kellam,  69  Ala.  442. 

At  common  lav7,  as  it  prevails  in  P^ngland  and  some  of  the  American 
states,  a  mortgagee,  having  the  legal  title  to  the  estate  as  against  a  mortgagor, 
has  the  right  to  take  the  rents  and  profits  before  foreclosure  (1  Jones  on 
Mort.  (3d  ed.)  sec.  11)  ;  and  under  a  mortgage  subsequent  to  the  lease,  hav- 
ing legally  the  reversion,  may  claim  them  at  any  time  from  the  lessee,  and 
the  lessee  will  be  justified  in  paying  them  to  him  upon  his  mere  demand. 
(Comer  v.  Sheehan,  74  Ala.  452,  ibl(per  Somerville,  J.)  ;  Newall  v.  Wright, 
3  Mass.  138,  152;  Taylor's  Land.  &  Tenant,  sec.  119;  1  Jones  on  Mort- 
(3  ed.)  sees.  773,  776),  the  effect  of  demand  and  notice  being  to  substitute 
the  mortgagee  as  landlord  in  place  of  the  mortgagor. 

In  New  York,  &c.,  prior  mortgages.  —  It  is,  of  course,  not  so  in  New 
York  and  in  many  other  American  states,  where  the  mortgagee  has  a  mere 
lien,  and  the  mortgagor  a  right  to  the  possession  and  profits  until  foreclos- 
ure. 1  Jones  on  Mort.  (3d  ed.)  sec.  771.  Neither  is  it  so,  even  at  com- 
mon law,  in  case  of  a  mortgage  prior  to  the  lease.  The  mortgagee  in 
such  case  is  not  a  reversioner,  but  has  a  title  paramount  to  the  lease,  and 
there  is  no  privity  between  him  and  the  lessee  unless  the  latter  attorn  to  him. 
Comer  v.  Sheehan,  74  Ala.  452,  458;  Jolinston  r.  Riddle,  70  Ala.  219;  New- 
all  V.  Wright,  3  Mass.  138,  152;  Drakford  v.  Turk,  75  Ala.  339.  Hence  a 
prior  mortgagee  cannot  distrain  for  rent  without  an  attornment.  McKircher 
V.  Hawley,  16  Johns.  (N.  Y.)  289.  And  payment  of  rent  to  him  would  be  no 
defence  to  a  suit  for  rent  by  mortgagor.  Souders  v.  Vansickle,  8  N.  J.  L. 
313;  Joplin  v.  Johnson,  2  Kerrs.  (N.  B.)  541.  Nor  is  such  rent  recoverable 
by  the  mortgagee  from  the  mortgagor.  Hatch  v.  Sykes,  04  Miss.  307.  The 
mortgagee  or  his  assignee  may  bring  action  of  ejectment  against  the  lessee 
witiiout  notice  to  quit,  Jackson  v.  Fuller,  4  Johns.  (N.  Y.)  215;  Jackson 
V.  Rowland,  6  Wend.  (N.  Y.)  666;  or  he  may  summarily  enter  and  eject 
tenant.  Brewing  v.  Berry  man,  2  Pugs.  (N.  li.)  115.  And  the  lessee  would  not 
be  entitled  to  the  emblements.  Downard  r.  Groff,  40  Iowa,  597;  Hecht  v. 
Dcttman,  56  Iowa,  679;  Martin  v.  Knapp,  57  Iowa,  336,  344;  Lane  v.  King, 
8  Wend.  (N.  Y.)   584;  Jones  v.  Thomas,  8  Blackf.  (Ind.)  428. 

The  relation  of  landlord  and  tenant  may,  however,  be  created  between 
such  prior  mortgagee  and  a  subsequent  lessee,  as  by  the  mortgagee's  entry 
and  receipt  of  rent  from  tlie  lessee.  Conn.  Mut.  Ins.  Co.  v.  U.  S.,  21  Ct.  of 
Claims,  195.  And  the  lessee  will  be  justified  in  attorning  to  the  mortgagee, 
if  actually  or  constructively  evicted  by  him.  Such  an  eviction  would  be 
defence  to  suit  for  rent  by  the  mortgagor.  Underhay  i:  Read,  20  Q.  B.  D. 
209.  A  prior  mortgagee  cannot,  however  (as  a  subsequent  mortgagee  can) 
make  the  lessee  of  the  mortgagor  his  tenant  by  simjjle  notice  and  demand  to 
pay  rent.  Drakford  v.  Turk,  75  Ala.  339;  Comer  r.  Sheehan,  74  Ala.  452, 
458  (  per  Somerville,  J.)  ;  Johnstone  r.  Riddle,  70  Ala.  219. 

Ordinarily,  the  relation  of  landlord  and  tenant  does  not  exist  between  a 
mortgagee  and  tlie  grantee  of  a  mortgagor.  Jackson  i'.  Chase,  2  Johns. 
(N.  Y.)  84.  And,  therefore,  at  common  law,  notice  to  quit  is  not  necessary 
before  ejecting  the  mortgagor. 

8G 


Ch.  I.  S.  28.]    BY  MORTGAGORS  AND  MORTGAGEES.       *i)0 

could  not  eject  the  tenant  for  a.  forfeiture  (A)  ;  but  by  sect. 
25,  sub-sect.  5,  of  the  Judicature  Act,  1873 : 

(/i)  Doe  d.  Marriott  v.  Edwards,  5  B.  &  Ad.  1065. 

A  mortgage  and  lease  given  by  mortgagor  to  mortgagee  upoH  the  same 
day  do  not  merge.  The  law  presumes  tliat  mortgage  was  executed  first, 
and  infers  an  implied  agreement  that  mortgagor  shall  not  take  possession 
under  his  mortgage  during  the  lease.  If  mortgagor  subsequently  give  mort- 
gagee a  second  mortgage,  the  mortgagee  might  take  possession  under  the 
second  mortgage.     Newall  v.  Wright,  3  Mass.  138,  152. 

A  lessee  for  years  has  a  right  to  redeem  from  a  prior  mortgage,  Martin 
V.  Miles,  5  Ont.  404 ;  and  consequently  is  a  proper  party  to  a  foreclosure  suit, 
Can.  Perm.  Loan  &  Sav.  Soc,  22  Grant's  Ch.  (Ont.)  461 ;  2  Jones  on  Mort. 
sec.  106(5. 

Tenancies  betvT^een  mortgagee  and  mortgagor.  —  The  relation  does 
not  exist  in  the  ordinary  sense  between  them  (/l'x  parte  McBean,  24  N.  B.  302), 
though  under  circumstances  it  has  been  held  that  the  mortgagor  was  a  tenant 
from  year  to  year,  entitled  to  six  months'  notice  to  quit.  Jackson  v.  Lang- 
head,  2  Johns.  (N.  Y.)  75.  The  mortgagor  certainly  may  become  a  tenant  to 
the  mortgagee.  Marden  v.  Jordan,  65  Me.  9 ;  Staples  v.  Emery,  7  Greenl. 
(Me.)  201.  And  in  such  case  may  set  up  such  tenancy  as  a  defence  to  eject- 
ment brought  by  a  purchaser  of  the  equity  of  redemption.  Doe  d.  Smith  v. 
Snarr,  1  P.  &  B."(N.  B.)  56. 

Mortgages  are  sometimes  made  with  attornment  clauses  ;  and  if  such  mort- 
gages contain  also  re-entry  clauses  for  non-])ayment  of  rent  without  notice  to 
quit,  the  mortgagee  may  terminate  tenancy  by  action  for  possession.  Hall 
V.  Comfort,  18  Q.  B.  D.  11,  14,  18.  And  without  notice  to  quit  (per  Cole- 
ridge, C.  .J.),  supra,  citing  Daubuz  v.  Lavington,  13  Q.  B.  D.  347. 

Eviction  by  mortgagee ;  damages  to  lessee.  —  The  damage  to  the 
lessee  of  a  mortgagor,  if  evicted  by  the  mortgagee  under  a  foreclosure  or 
otherwise,  is  the  difference  between  the  value  of  the  use  of  the  premises  for 
the  remainder  of  the  term  and  the  rental  for  the  same  time.  Larkin  v.  Mis- 
land,  100  N.  Y.  212;  Clarkson  v.  Skidmore,  46  N.  Y.  297.  And  the  lessee  is 
entitled  to  be  paid  such  damages  out  of  the  proceeds  of  the  foreclosure  sale, 
before  any  of  them  are  returned  to  the  mortgagor.  Larkin  v.  Misland,  100 
N.  Y.  212,"  213  {pfir  Finch,  J.). 

Mortgagee  of  lessee.  —  Being  an  assignee  of  the  term  takes  all  the 
lessee's  rights,  and  can  hold  them  as  against  the  lessor  (Yates  v.  Kinney,  19 
Neb.  275),  though,  of  course,  his  right  to  possession  and  profits  would  not 
attach  in  states  where  the  common  law  doctrine  does  not  prevail  till  after 
foreclosure  and  delivery  of  foreclosure  deed. 

Possession  of  mortgagee.  —  Possession  of  mortgagee  is  essential  (gen- 
erally) in  America  to  the  liability  of  a  mortgagee  of  a  term  upon  the  cove- 
nants in  the  lease.  Astor  v.  Miller,  2  Paige  (N.  Y.)  68  (and  see  per  AVal- 
worth,  Chan.,  pp.  76,  77)  ;  Babcock  v.  Scoville,  56  111.  461,  464  {per  Sheldon, 
J.,  distinguishing  mortgagee  assignees  from  ordinary  assignees)  ;  Calvert  v. 
Bradley,  16  How.  580,  595  {per  Daniel,  J.,  indicating  but  not  expressly  giving 
his  opinion,  and  limiting  Steele  v.  Carroll,  12  Pet.  201,  and  Van  Ness  v.  Hyatt, 
13  Pet.  294)  ;  Walton  (•.  Cronly's  Admr.,  14  Wend.  (N.  Y.)  63. 

The  American  courts,  following  Eaton  v.  Jaques,  Doug.  454,  which  has 
been  overruled  by  the  English  courts,  hold  that  the  interest  of  a  mortgagee 
before  foreclosure  is  a  chattel  interest  merely. 

87 


*50  BY   WHOM   TERMS    GRANTED.  [Ch.  I.  S.  28. 

"  A  mortgagor  entitled  for  the  time  being  to  the  possession 
or  the  receipt  of  the  rents  and  profits  of  any  land,  as  to 
which  no  notice  of  his  intention  to  take  possession  or  to 
enter  into  the  receipt  of  the  rents  and  profits  thereof  shall 
have  been  given  by  the  mortgagee,  may  sue  for  such  posses- 
sion, or  for  the  recovery  of  such  rents  or  profits,  or  to  pre- 
vent or  recover  damages  in  respect  of  any  trespass  or  other 
Avrong  relative  thereto,  in  his  own  name  only,  unless  the 
cause  of  action  arises  upon  a  lease  or  other  contract  made 
by  him  jointly  with  any  other  person." 

Ttwo  theories  of  mortgages.  —  The  common  law  theory  (as  held  in  the 
English  courts),  that  the  mortgagee  has  tlie  legal  estate  and  right  of  posses- 
sion before  foreclosure  and  before  condition  broken  unless  otherwise  stipu- 
lated, prevails  in  Maine,  New  Hampshire,  Vermont,  Massachusetts,  Rliode 
Island,  Connecticut,  New  Jersey,  Pennsylvania,  Maryland,  \'irginia,  West 
Virginia,  North  Carolina,  Alabama,  Kentucky,  Tennessee,  Oiiio,  Illinois,  and 
Arkansas.  In  Delaware,  Mississippi,  and  Missouri  it  prevails  so  far  modified 
that  mortgagee  has  no  right  to  possession  until  condition  broken.  1  Jones  on 
Mort.  (od  ed.)  sees.  17—58. 

Theory  that  mortgage  creates  a  lien  merely  before  foreclosure.  — 
This  theory  prevails  in  the  states  of  New  York,  South  Carolina,  Georgia, 
Florida,  Louisiana,  Texas,  Indiana,  Michigan,  Wisconsin,  Minnesota,  Ne- 
braska, California,  and  Oregon.  In  Dakota,  New  Mexico,  and  Utali  Terri- 
tories, and  in  the  states  of  Iowa,  Kansas,  and  Nevada,  witli  the  qualification 
in  the  last  three  states,  tliat  parties  may  agree  in  the  mortgage  that  mort- 
gagee shall  have  the  right  of  possession.     1  Jones  on  Mort.  (3d  ed.)  sec.  58. 

Tills  theory  originated  partly  from  the  civil  law  as  it  prevailed  in  Louisi- 
ana, and  partly  from  early  decisions  in  New  York,  following  the  views  of 
Lord  Mansfield,  since  repudiated  by  the  English  courts.     Same,  sec.  59. 

In  the  states  where  it  prevails  the  mortgagor  is  entitled  to  the  rents  and 
profits  until  the  delivery  of  the  deed  under  the  foreclosure  sale  (Dewey  i'. 
Latson,  G  Cal.  009;  Syracuse  City  Hank  v.  Talhnan,  31  Barb.  (N.  Y.  Supreme 
Ct.)201;  Zeiter  v.  Bowman,  (5  Id.  1.'33;  1  Jones  on  Mort.  (3d  ed.)  sec.  771), 
unless  a  receiver  is  appointed.  In  that  case  the  rents  and  profits  are  inter- 
cepted, and  the  mortgagee  gets  the  benefit  of  them.  Howell  v.  Ripley,  10 
Paige  (N.  Y.)  43.  Sometimes  a  junior  mortgagee  may  get  some  advantage 
over  a  senior  mortgagee. 

As  a  result  of  this  theory  an  attornment  by  a  lessee  to  a  purchaser,  under 
a  mortgage  sale  prior  to  the  delivery  of  the  deed,  even  though  the  mortgage 
were  prior  to  the  lease,  is  no  defence  to  a  suit  for  rent  hy  the  mortgagor. 
Whiilin  V.  White,  25  N.  Y.  402.  Neither  can  the  mortgagor's  tenant  be 
required  to  attorn  to  such  purchaser  until  lie  produces  the  foreclosure  deed. 
Same. 

Neither  can  the  mortgagee  bring  ejectment  against  the  tenant  of  the 
mortgagor  prior  to  the  foreclosure  and  sale.  Simers  r.  Saltus,  3  Denio 
(N.  Y.)  214,  219.  But  the  purchaser  at  foreclosure  sale,  after  lie  lias 
received  his  deed,  can  maintain  tresjjass  against  the  lessee  if  the  latter  carry 
away  crops  growing  ui)on  the  premises  at  the  time  of  the  sale.  Lane  v. 
King,  8  Wend.  (x\.  Y.)  584. 


Cn.  I.  S.  28.]    BY  MORTGAGORS  AND  MORTGAGEES.       *51 

*  Upon  giving  notice  of  his  mortgage,  and  request-     [*51] 
ing  the  rent  to  be  paid  to  him,  the  mortgagee  becomes 
entitled  to  all  the  arrears  of  rent  which  became  due  after  his 
mortgage,  and  which  then  remained  unpaid,  and  also  to  all 
subsequent  rent  (0-^ 

Mortgagee  entitled  to  rent  on  notice  of  mortgage.  —  Where  a 
mortgagor  after  execution  of  an  agreement  for  a  lease,  under 
which  the  tenant  has  entered,  mortgages  the  premises,  tlie 
mortgagee  may  maintain  use  and  occupation  for  the  enjoy- 
ment of  them  subsequently  to  the  mortgage,  and  notice 
thereof  (A;).  Where  a  mortgage  Avas  made  after  a  letting 
from  year  to  year,  and  subsequently  the  mortgagor,  on 
making  some  improvements,  agreed  with  the  tenant  for  an 
increased  rent ;  it  Avas  held  that  the  mortgagee,  after  notice 
to  the  tenant  of  the  mortgage,  might  recover,  in  an  action 
for  use  and  occupation,  arrears  of  the  improved  rent  due  at 
the  time  of  the  notice,  as  well  as  subsequent  accruing 
rent  (/).  Where  a  mortgage  was  made  after  a  letting,  and 
it  was  subsequently  arranged  between  the  mortgagor,  the 
mortgagee,  and  the  tenant,  that  the  latter  should  pay  the 
interest  to  the  mortgagee,  and  the  remainder  of  his  rent  to 
the  mortgagor ;  it  was  held  that  after  this  arrangement  the 
tenant  was  not  justified,  after  a  mere  notice  so  to  do,  in  pay- 
ing the  whole  rent  to  the  mortgagee  (w?). 

Leases  after  the  mortgage ;  common  law  rule.  —  With 
regard  to  leases  after  a  mortgage,  the  common  law  rule  was, 
that  neither  mortgagor  nor  raortsfaofee  could  make  a  sfood 
lease  alone ;  for  the  mortgagor's  lease  was  bad  in  law  as 
against  the  mortgagee,  wherefore  the  mortgagee  could  evict 
the  lessee  as  'a  trespasser  (w)  ;  ^  and  the  mortgagee's  lease 
was  bad  in  equity  as  against  the  mortgagor,  wherefore  the 

{{)  Moss  i\  Gallimore,  1  Doug.  279;  (/)  Burrowes  i-.  Gradin,  1  D.  &  L. 

1   Smith,  L.  C.  629  (7th  ed.)  ;  Pope  218. 

V.  Briggs,  9  B.  &  C.  245 ;  Rogers  v.  (w)  Whitmorc  v.   Walker,  2  C.  & 

Humphreys,  4  A.  &  E.  299,  313.  K.  615. 

(Jc)  Rawson    v.    Eicke,  7  A.  &  E.  (n)  Keech  v.   Hall,  1   Doug.  21 ;  1 

451.     See  Form  of  Notice, />os<,  Ap-  Sm.   L.   C. ;   Thunder   d.  AVeaver   v. 

pendix  C,  Nos.  15,  16.  Belcher,  3  East,  449, 

^  See  ante,  sec.  28  a,  note. 

89 


*52  BY   WHOM   TERMS   GRANTED.  [Ch.  I.  S.  28. 

mortgagor  could,  by  redeeming  the  mortgage,  avoid  the 
lease  (o).  As,  therefore,  neither  mortgagor  nor  mortgagee 
could  make  a  valid  lease,  it  became  usual  for  them  both  to 
concur  (p),  and  for  mortgage  deeds  to  contain  special  leas- 
ing powers  by  one  or  other,  or  both  {q^.^ 

Effect  of  Conveyancing  Act.  —  The  18th  section  of  the  Con- 
veyancing Act,  1881  (44  &  45  Vict.  c.  41),  has  with  regard 
to  leases  made  after  the  commencement  of  that  act  [1st  of  Jan. 
1882],  and  so  far  as  a  contrary/  intention  is  not  expressed  by 
both  parties  in  the  mortgage  deed,  abolished  the  common  law 
rule ;  has  given  to  either  mortgagor  or  mortgagee,  if  in 
possession,  ample  powers  of  leasing ;  and  has  rendered  joint 
powers  of  leasing  unnecessary  for  the  future.     See  p.   56, 

post. 
[*52]  *  Lease  after  mortgage  before  Conveyancing  Act,  &c. 

—  The  18th  section  of  the  Conveyancing  Act  being 
neither  retrospective  nor  compulsory,  the  decisions  applicable 
to  mortgages  before  the  act  are  still  of  very  great  importance, 
especially  as  it  appears  to  have  become  usual  for  mortgagees 
to  insist  upon  the  exclusion  of  sub-s.  (1)  which  confers  the 
leasing  power  upon  the  mortgagor  (r).  These  cases  there- 
fore must  now  be  stated,  so  far  as  they  affect  the  relation  of 
landlord  and  tenant,  the  reader  being  referred  to  other  works 
for  the  cases  affecting^  the  relations  of  mortcragfor  and  mort- 
gagee  (s). 

Leases  by  estoppel.  —  If  then  the  mortgage  bear  date  before 
the  act,  or  if  the  18th  section  of  the  act  be  excluded,  and 
there  be  no  express  leasing  power  reserved  to  the  mortgagor, 
the   result  of   a  lease   by  the  mortgagor  alone   is   that  the 

(o)  Franklinski  v.  Ball,  34  L.  J.,  (r)  Hood  and  Cliallis  on  the  Con- 
di. 153.  veyant'ing  Acts,  p.  111. 

(p)  See  Carpenter  v.  Parker,  3  C.  (s)  See  Coote  on  Mortgages ;  Fisher 

B.,  N.  S.  206.  on  Mortgages. 

(7)  Hqc  post,  52,  55. 

1  "  Tlie  only  safety  for  a  lessee  in  taking  a  lease  of  premises  subject  to 
a  mortgage,  is  to  obtain  the  concurrent  action  of  tiie  mortgagor  and  mort- 
gagee in  the  execution  of  the  lease."     1  Jones  on  Mort.  (3(1  ed.)  sec.  783. 

A  lease  made  by  tiie  mortgagee,  witiiout  the  concurrence  of  the  mortgagor, 
is  liable  to  be  terminated  by  the  redemption  of  the  mortgage.  Willard  v. 
Harvey,  5  N.  II.  252. 

90 


Cu.I.S.28.]      BY  MORTGAGORS  AND  MORTGAGEES.      *53 

tenant  will  be  thereby  estopped  (^)  during  his  possession 
under  the  lease  from  disputing  tlie  mortgagor's  right  to 
demise  (w),  and  apparently,  upon  the  general  principle  that 
an  estoppel  binds  both  parties  (./;),  the  mortgagor  landlord 
will  also  be  liable  by  estoppel  upon  his  covenant  for  quiet 
enjoyment  upon  his  ejectment  by  the  mortgagee  (2). 

Mortgagee  cannot  distrain,  &c.  —  But  although  the  mortgagee 
may  treat  the  tenants  of  the  moi'tgagor  as  trespassers  in  the 
case  of  a  lease  made  after  the  mortgage,  he  cannot  distrain 
or  sue  for  rent,  or  for  use  and  occu2Jation  (a),  unless  a  new 
tenancy  has  been  created  as  between  him  and  the  tenant  in 
possession,  by  an  attornment  or  otherwise  (6).  A  mere 
notice  of  the  mortgage,  with  a  request  to  the  tenant  to  pay 
his  rent  to  the  mortgagee  (not  assented  to  by  the  tenant), 
is  insufficient  to  create  between  them  the  relation  of  landlord 
and  tenant  (c).  If  the  notice  be  assented  to  and  complied 
with  by  the  tenant,  he  becomes  tenant  from  year  to  year 
upon  an  agreement  for  a  lease  with  the  mortgagor,  and  can, 
by  giving  notice  to  quit,  prevent  the  mortgagee  from  en- 
forcing specific  performance  of  the  agreement  (d^.  Where 
a  tenant,  after  notice  given  to  him  of  the  mortgage, 
pays  rent  to  the  *  mortgagee  under  a  distress,  it  does  [*53] 
not  constitute  a  tenancy  by  relation  back,  so  as  to 
entitle  the  mortgagee  to  distrain  for  a  previous  half-year's 

(0  See  Webb  v.  Austin,  7  M.  &  G.  brook  Steam  Canal  Co.,  5  Exch.  932; 

701.  Litchfield  v.  Ready,  5  Exch.  939. 

(u)  Alchorne    v    Gomnie,  2   Bingj.  {h)  Brown    v.   Storey,  1    M.   &   G. 

54;  Morton  ;•.  Woods,  L.  R.,  3  Q.  B.  117,  126;  Roberts  v.  Hayward,  3  C. 

658;    37   L.  J.,    Q.  B.   242;    Doe    d.  &  P.  432 ;  Doe  f/.  Wliitaker  »;.  Hales, 

Learning    v.    Skirrow,    7    A.    &    E.  7  Bing.  322 ;  Doe  d.  Hugiies  v.  Buck- 

157.  ncU,  8   C.  P.   566;   Doe   d.   Miggin- 

(x)  Co.  Litt.  352  (a).  botham  v.  Barton,  11  A.   &  E.  307  ; 

[z)   Hartcup  v.  Bell,  1  C.  &  E.  19,  Doe   d.  Bowman  v.  Lewis,   13  M.  & 

per   Manisty,   J.,    aff.    both    by   Div.  W.  241. 

Court  and  C.  A.  {ih.).     This  is  an  ex-  (c)  Rogers  v.  Humphreys,  4  A.  & 

ception  to  the  general  effect  of  the  E.  299;-  Partington   v.   Woodcock,  6 

qualified   covenant    for   quiet    enjoy-  A.&E.  690;  Evans  r.  Elliott,  9  A.  & 

ment:  see  Ch.  XVII.  Sect.  8,  post.  E.  342 ;  Doe  d.  Higginbotliam  v.  Bar- 

(a)  Rogers  v.   Humpiireys,  4  A.  &  ton,    11    A.   &    10.  307;    Hickman    v. 

E.  299,  313 ;  Partington  v.  Woodcock,  Machin,  4  H.  &  N.  716. 

6  A.  &  E.  690;  Evans  v.  Elliott,  9  A.  (J)  Corbett  v.  Howden,  L.  R.,  25' 

&  E.  342;  Turner  v.  Cameron's  Coal-  Cli.  D.  678;  54  L.  J.,  Cli.  109;  50  L, 

T.  470 ;  32  W.  R.  067,  C.  A. 

91 


*53  BY   WHOM   TERMS    GRANTED.  [Ch.  I.  S.  28. 

rent  (e).  But  if  the  tenant  expressly  attorns  as  from  a 
previous  day  at  a  fixed  rent,  all  such  rent,  when  in  arrear, 
may  be  distrained  for  (/).  Where  a  mortgagee  gave  notice 
of  the  mortgage  to  a  tenant  of  the  mortgagor,  and  required 
him  to  pay  all  rent  due  and  to  become  due  in  respect  of  the 
premises,  and  the  tenant  acquiesced,  it  Avas  held  to  be  evi- 
dence from  which  a  jury  might  infer  a  yearly  tenancy,  as 
between  the  mortgagee  and  the  tenant  (//).  The  result  of 
the  cases  seems  to  be  that  a  bare  notice  by  the  mortgagee  to 
a  subsequent  tenant  of  the  mortgagor  to  pay  him  the  rent 
(not  assented  to  by  the  tenant)  will  not  create  any  new 
tenancy ;  but  that  a  notice  acquiesced  in  by  payment  of  rent 
or  otherwise  is  evidence  from  which  a  jury  may  infer  a  new 
contract  of  tenancy  from  year  to  3^ear  as  between  the  mort- 
gagee and  the  tenant  in  possession  (A).  The  mere  receipt 
by  the  mortgagee  from  the  mortgagor  of  interest  due  on  the 
mortgage  will  not  preclude  the  mortgagee  from  ejecting  the 
mortgagor's  tenant  (z).  The  fact  of  the  mortgagee  being  al- 
lowed to  see  improvements  made  to  the  property  by  the  lessee 
of  the  mortgagor,  does  not  raise  an  implied  tenancy  between 
the  mortgagee  and  the  lessee,  and  is  not  a  recognition  of  his 
holding  (/c).  A  mortgagee  out  of  possession,  who  gives 
notice  of  the  mortgage  to  the  tenant  who  has  become  tenant 
since  the  mortgage,  cannot  maintain  trespass  for  mesne 
profits  against  the  tenant  for  the  rents  accrued  due  since 
the  date  of  the  mortgage,  by  mere  entry  upon  the  land  after 
the  notice,  the  doctrine  of  relation  not  applying  to  such 
a  case  (?)• 

Letting  of  furnished  house  by  mortgagor.  —  If  the  mortgagor 
of  a  house  lets  it  furnished,  and  afterwards  the  tenant  re- 
ceives notice  from  the  mortgagee  to  pay  the  rent    to  him, 

(c)  Evans  v.  Elliott,  0  A.  &  E.  .342.  Humphreys,  4  A.  &  E.  209 ;  Doo  d. 

(/)  Gladman  r.  VUmu'v,  15  L.  J.,  HifiKi'i'iotliinn  v.  Barton,  11  A.  &  E. 

Q.  13.  80;  lO.Jur.  lO't.  .307;   Ilifkniiui  ?•.  Mafhiii,  4  11.  &  N. 

(;,)  Brown  r.  Storey,  1  M.  &  G.  117  ;  710  ;  21  L.  .!.,  K.\.  .310. 

Doc  d.  Hughes  r.  Bucknoll,  8  C.  &  P.  (/)  Doe  <l.   Rogers  v.  Cadwallader, 

500.  2  B.  &  A(i.  473. 

(/i)  Powseley    v.    Blnckman,    Cro.  (A)  Doe  </.  Parry  i7.  Hughes,  1 1  .lur. 

Jac.  050;  Brown  v.  Storey  and  I)(»e  (/.  008. 

Hughes  V.  Bucknell,  supra;  Rogers  r.  (/)  Litchfield  v.  Ready,  f»  Exch.  039. 

92 


Ch.I.S.28.]'    by  mortgagors  AND  MORTGAGEES.       *54 

which  he  does,  the  mortgagor  may  still  recover  against  the 
tenant  for  the  use  of  the  furniture,  for  either  the  rent  may 
be  apportioned,  or  a  new  agreement  may  be  inferred  to  take 
the  house  of  the  mortgagee,  and  to  pay  the  mortgagor  for  the 
use  of  the  furniture  (wi)* 

Where  a  mortgagor  after  mortgage  demised  part  of  the  land, 
and  then  made  a  second  mortgage,  and  the  tenant  paid  rent 
to  the  second  mortgagee,  who  demised  another  part  of  the 
land  to  a  different  tenant,  and  then  notice  was  given 
to  both  tenants  of  the  first  mortgage,  who  *  accord-  [*54] 
ingly  paid  their  rents  to  the  first  mortgagee ;  it  was 
held  in  ejectment  by  the  second  mortgagee,  that  the  tenants 
might  both  show  the  prior  mortgage  and  the  notice  (n}.  A., 
seised,  in  fee,  mortgaged  in  fee  to  B.,  and  afterwards  leased 
to  the  defendant  for  thirty-one  years.  The  plaintiff  bought 
the  legal  estate  from  B.,  the  mortgagee,  and  also  the  equita- 
ble estate  from  a  party  who  derived  it  from  A.,  the  mort- 
gagor, which  party  also  joined  in  the  conveyance  of  the  legal 
estate  ;  it  was  held,  that  the  plaintiff,  although  he  had  re- 
ceived rent  from  the  defendant,  was  not  bound  by  the  mort- 
gagor's lease  to  him,  but  might  recover  in  ejectment  after 
the  expiration  of  a  notice  to  quit,  or  sue  him  for  use  and 
occupation  after  the  payment  and  receipt  of  rent  (o).  Where 
a  person  who  had  bought  premises  which  had  not  been  con- 
veyed to  him,  let  his  son  into  possession  as  tenant  at  will, 
paying  no  rent,  afterwards  had  the  property  conveyed  to 
him,  and  then  mortgaged  it ;  it  was  held,  that  if  the  mort- 
gage had  any  operation  on  the  tenancy  at  will,  there  was  no 
new  tenancy  between  the  son  and  the  mortgagee,  so  as  to 
prevent  the  operation  of  the  Statute  of  Limitations  (p}. 
Where  a  mortgagor  gave  an  authority  to  the  mortgagee  to 
receive  the  rent  of  a  tenant,  under  a  demise  subsequent  to  a 
mortgage,  and  the  mortgagee  received  the  rent  for  some 
time  ;  after  which  the  authority  was  countermanded,  and  the 
tenant  refused  to  pay  to  either,  and  the  mortgagor  distrained, 

(m)  Salmon  v.  Matthews,  8  M.  &  (o)  Doe  d.  Ld.  Downe  r.  Thompson, 

W.  827.  9  Q.  B.  1037. 

(n)  Doe  jd.  Higginbotham  v.  Bar-  (;))  Doe  d.  Goody  v.  Carter,  9  Q. 

ton,  11  A.  &  E.  307.  B.  863. 

93 


*55  BY   WHOM   TERMS   GRANTED.  [Ch.  I.  S.28. 

it  was  held  that  the  relation  of  landlord  and  tenant  was  not 
created  between  the  tenant  and  the  mortgagee  (5).  A  tenant 
holding  under  the  mortgagor  may  show  that  the  lease  was 
made  after  the  mortgage,  and  that  he,  the  tenant,  was  com- 
pelled to  pay  the  rent  to  the  mortgagee,  and  such  pa^^ment 
will  operate  as  a  discharge  of  the  rent  to  the  mortgagor, 
and  may  be  proved  under  a  special  or  common  plea  of  pay- 
ment (r).  If  a  mortgagor  su3S  for  rent  after  notice  given 
to  the  tenant  of  the  mortgage,  the  tenant  may,  at  his  own 
expense,  obtain  relief  under  the  Interpleader  Act  (.s). 

Leases  by  mortgagee.  —  The  mortgagee,  in  the  case  of  a 
mortgage  to  which  the  18th  section  of  the  Conveyancing 
Act  does  not  apply,  cannot  before  foreclosure  of  the  equity 
of  redemption  make  a  lease  for  years  of  property  in  mort- 
gage which  will  bind  the  mortgagor,  unless  to  avoid  an 
apparent  loss  and  merely  of  necessity  (^t).  If  a  mort- 
gagee accepts  a  person  as  a  tenant,  to  whom  the  mortgagor 

has  granted  a  lease  for  years  since  the  mortgage, 
[*55]     *  that  makes  him  only  tenant  from  year  to  year  to 

the  mortgagee  (?t).  Such  new  tenancy  will  be  sub- 
ject to  the  terms  and  conditions  of  the  lease,  so  far  as  the 
same  are  applicable  to  and  not  inconsistent  with  a  yearly 
tenancy  (a:).  But  payment  of  the  rent  will  not  relate  back 
to  the  date  or  service  of  the  notice  of  the  mortgage,  so  as  to 
make  the  new  tenancy  commence  from  that  time  (y).  For 
the  purpose  of  a  notice  to  quit,  the  new  tenancy  will  be 
deemed  to  have  commenced  from  the  same  day  in  the  year 
as  the  original  term  (2).  Where  a  tenant  attorns  expressly 
as  from  a  previous  specified  day,  at  a  fixed  rent,  a  distress  may 

(7)  Whcolcr  V.  Br.'inscombp,  5  Q.  (»0  Doe  d.  Hughes  p.  Bucknell,  8 

B..37.3;  Wilton  v.  Diimi,  17  Q.  B.  294.  C.  &  P.  500;  Doe  d.  Prior  v.  Ongley, 

(r)  Johnson    v.    Jones,   9   A.   &   E.  10  C.  B.  25  (3(1  point)  ;    Carpenter  i;. 

809;    Waddilove  v.  Barnett,  2  Bing.  Parker,  3  C.  B.,  N.  S.  232,  235. 

N.   C.    638;   4    Dowl.    347;    Pope    i-.  (r)  Doe  d.  Thomson  v.  Aniey,  12 

Biggs,  9  B.  &  C.  245;   Wliitmore  v.  A.  &  E.  476;    Doe    d.    Davenish    v. 

Walker,  2  C.  &  K.  015.  Moffatt,    15   Q.    B.    257,   205;    Cole 

(s)  1  &  2  Will.  4,  c.  5H,  8.  1  ;  Mur-  Ejcc.  470. 

dock  i;.  Taylor,  0  Bing.  N.  C.  293.  (//)  Evans  v.  Elliott,  9  A.  &  E.  342. 

(0  Ilungerford  r.  Clay,  9  Mod.  1  ;  (2)  Doe  d.  Collins  v.  Weller,  7  T. 

Franklinski  r.  Ball,  34  L.  J.,  Ch.  153;  K.  478;  Cole  Ejec.  470.      . 
Powell  on  Mori.  188. 

94 


Ch.I.  S.  28.]     BY  MORTGAGORS  AND  MORTGAGEES.       *55 

be  made  for  the  rent  calculated  from  that  day  (a).  When 
a  new  tenancy  from  year  to  year  has  been  created  as  between 
the  mortgagee  and  the  tenant,  the  mortgagee  is  thenceforth 
the  landlord,  and  may  sue  or  distrain  for  the  rent  (6),  or 
maintain  an  action  for  use  and  occupation  (c).  But  he 
cannot  maintain  an  ejectment  against  the  tenant  until  the 
new  tenancy  has  been  determined  by  notice  to  quit,  sur- 
render, forfeiture,  or  otherwise  ((?),  although  afterwarcLs  he 
may  (f). 

Leases  by  mortgagor  and  mortgagee.  —  Where  lands  mort- 
gaged before  the  Conveyancing  Act  are  to  be  leased,  the 
mortgagor  and  mortgagee  ought  to  concur  in  granting  the 
lease  (/)•  A  joint  action  of  covenant  is  not  maintainable 
against  a  mortgagor  and  a  mortgagee  on  an  implied  cove- 
nant, if  the  latter  has  demised,  and  the  former,  who  had 
merely  an  equitable  interest,  has  confirmed  the  lease  (</). 
A  mortgagor  and  mortgagee  for  a  term  joined  in  a  deed,  by 
which  the  former  leased  and  the  latter  confirmed  the  prem- 
ises to  a  third  party  for  the  remainder  of  the  term,  at  a  rent 
reserved  to  the  mortgagor,  his  executors,  &c.  The  deed 
declared  that  nothing  therein  should  abridge,  defeat,  alter, 
&c.,  the  interest  of  the  mortgagee  in  the  premises,  which 
was  to  remain  a  security  for  his  principal  and  interest ;  the 
mortgagee  was  held  entitled  to  the  rent  (li).  A  mortgagor 
agreed  to  sell  premises  held  by  a  tenant  under  a  lease 
granted  by  him  after  the  mortgage,  without  the  concurrence 
of  the  mortgagee,  who,  however,  was  willing  to  concur  in 
the  sale ;  it  was  held  that  the  mortgagor  was  able  to  make 
a  good  title  (i). 


(«)  Gladman  v.  Planner,  15  L.  J.,  son,  supra ;  Pole  v.  Davis,  1  F.  &  F. 

Q.  B.  80;  10  Jur.  109.  284. 

(b)  Rogers  v.  Humphreys,  4   A.  &  (/)  Ante,  51. 

E.  299;  Brown  v.  Storey,"  1  M.  &  G.  {g)  Smith  v.  Pocklington,  1  C.  &  J. 

117,  126.  445. 

(c)  Doe  d.  Ld.  Downe  v.  Thomp-  Qi)  Edwards  v.  Jones,  1  Coll.  247. 
son,  9  Q.  B.  1037.                                                {i)  Webb  v.  Austin,  7  M.  &  G.  701 ; 

(rf)  Cole  Ejec.  474,  477.  Sturgeon  v.  Wingfield,  15  H.  &  W. 

(e)  Doe  d.  Ld.  Downe   i-.  Thomp-  224. 

95 


*56  BY   A\^HOM   TERMS    GRANTED.  [Ch.  I.  S.  28. 

[*56]     *  (b)  By  Mortgagor   and   Mortgagee   under    Convey- 
ancing Act. 

The  leasing  powers,  both  of  a  mortgagor  in  possession  and 
of  a  mortgagee  in  possession,  under  a  mortgage  made  on  or 
after  Jan.  l.s^,  1882,  are  regulated  in  the  following  terms  by 
sect.  18  of  the  Conveyancing  and  Law  of  Property  Act,  1881 
(44  &  45  Vict.  c.  41). 

Lease  by  mortgagor.  —  "  (1.)  A  mortgagor  (Ji)  of  land  (?) 
while  in  possession  shall,  as  against  every  incumbrancer  (wj), 
have,  by  virtue  of  this  act,  power  to  make,  from  time  to 
time,  any  such  lease  of  the  mortgaged  land,  or  any  part 
thereof,  as  is  in  this  section  described  and  authorized. 

Lease  by  mortgagee.  —  "  (2.)  A  mortgagee  (h^  of  land  (J) 
while  in  possession  shall,  as  against  all  prior  incumbrancers, 
if  any,  and  as  against  the  mortgagor,  have,  by  virtue  of  this 
act,  power  to  make,  from  time  to  time,  any  such  lease  as 
aforesaid. 

What  leases.  —  "  (3.)  The  leases  which  this  section  author- 
izes are :  — 

(i.)  An   agricultural  or  occupation  lease  for  any  term 

not  exceeding  twenty-one  years  ;  and 
(ii.)  A  building  lease  for  any  term  not  exceeding  ninety- 
nine  years. 

"  (4.)  Every  person  making  a  lease   under   this  section 

(Jc)  By  s.  2,  sub-s.  (vi.),  of  the  act,  appears,  includes  real  and  personal 

"mortgage   includes  any  charge    on  property,  and   any  estate  or  interest 

any  property  for  securing  money  or  in  any  property,  real  or  ])ersonal,  and 

money's    worth,   and    mortgagor    in-  any  debt,  and  anything  in  action,  and 

eludes  any  person  from  time  to  time  any  other  right  or  interest." 
deriving  title  under  the  original  niort-  (w)  By  s.  2,  sub-s.  (vii.),  of  the  act, 

gagor,  or  entitled  to  redeem  amort-  "incumbrance    includes    a  mortgage 

gage,  according  to  his  estate,  interest,  in  fee,  or  for  a  less  estate,  and  a  trust 

or  right,  in  the  mortgaged  jiroperty ;  for  securing  money,  and  a  lien,  and  a 

and  mortgagee  in    possession    is,  for  charge  of  a  portion,  annuity,  or  other 

the  purposes  of  this  act,  a  mortgagee  cajjital  or  annual   sum  ;    and    incum- 

who,  in  right  of  the  mortgage,  lias  brancer  has  a  meaning  corresjjonding 

entered  into,  and  is  in  possession  of  with    that   of    incumbrance,    and    in- 

the  mortgaged  property."  eludes  every  person    entitled    to  the 

(/)  By  s.  2,  sub-s.  (ii.),  of  the  act,  benefit  of  an  incumbrance,  or  to  re- 

"  land,   unless    a   contrary   intention  quire  jiaynK'nt  or  discliarge  thereof." 

OG 


Ch.  I.  S.  28.]  BY    MOllTGAGORS   AND   MORTGAGEES.  *57 

may  execute  and  do  all  assurances  and  things  necessary  or 
proper  in  that  behalf. 

"  (5.)  Every  such  lease  shall  be  made  to  take  effect  in 
possession  not  later  than  twelve  months  after  its  date. 

Rent.  —  "  (6.)  Every  such  lease  shall  reserve  the  best  rent 
that  can  reasonably  be  obtained,  regard  being  had  to  the  cir- 
cumstances of  the  case,  but  without  any  fine  being  taken. 

"  (7.)  Every  such  lease  shall  contain  a  covenant  by  the 
lessee  for  payment  of  rent,  and  a  condition  of  re-entry  on 
the  rent  not  being  paid  within  a  time  therein  specified,  not 
exceeding  thirty  days. 

Counterpart. — "(8.)  A  counterpart  of  every  such  lease 
shall  be  executed  by  the  lessee,  and  delivered  to  the  lessor, 
of  which  execution  and  delivery  the  execution  of  the  lease 
by  the  lessor  shall,  in  favour  of  the  lessee,  and  all  persons 
deriving  title  under  him,  be  sufficient  evidence. 

Building  lease.  — "  (9.)  Every  such  building  lease  shall 
be  made  in  consideration  of  the  lessee,  or  some  person  by 
whose  direction  the  lease  is  granted,  having  erected,  or 
agreeing  to  erect,  within  not  more  than  five  years 
*  from  the  date  of  the  lease,  buildings,  new  or  addi-  [*57] 
tional,  or  having  improved  or  repaired  buildings,  or 
agreeing  to  improve  or  repair  buildings  within  that  time,  or 
having  executed,  or  agreeing  to  execute,  within  that  time, 
on  the  land  leased,  an  improvement  for  or  in  connection 
with  building  purposes. 

"  (10.)  In  any  such  building  lease,  a  peppercorn  rent,  or 
a  nominal  or  other  rent  less  than  the  rent  ultimately  payable, 
may  be  made  payable  for  the  first  five  years,  or  any  less  part 
of  the  term. 

"  (11-)  Delivery  of  counterpart.  — In  case  of  a  lease  by  the 
mortgagor,  he  shall,  within  one  month  after  making  the 
lease,  deliver  to  the  mortgagee,  or,  where  there  are  more 
than  one,  to  the  mortgagee  first  in  priority,  a  counterpart  of 
the  lease,  duly  executed  by  the  lessee  ;  but  the  lessee  shall 
not  be  concerned  to  see  that  this  provision  is  complied  with. 

"(12.)  Specific  performance. — A  contract  to  make  or 
accept  a  lease   under  this  section   may  be  enforced  by  or 

97 


*58  BY   WHOM   TERMS   GRANTED.  [Ch.  I.  S.  28. 

against  every  person  on  whom  the  lease,  if  granted,  would 
be  binding. 

"  (13.)  This  section  applies  only  if,  and  as  far  as  a  con- 
trary intention  is  not  expressed  by  the  mortgagor  and  mort- 
gagee in  the  mortgage  deed,  or  otherwise  in  writing,  and 
shall  have  effect,  subject  to  the  terms  of  the  mortgage  deed,  or 
of  any  such  writing,  and  to  the  provisions  therein  contained. 

"  (14.)  Nothing  in  this  act  shall  prevent  the  mortgage 
deed  from  reserving  to  or  conferring  on  the  mortgagor  or 
the  mortgagee,  or  both,  any  further  or  other  powers  of  leas- 
ing, or  having  reference  to  leasing;  and  any  further  or  other 
powers  so  reserved  or  conferred  shall  be  exercisable,  as  far 
as  may  be,  as  if  they  were  conferred  by  this  act,  and  with 
all  the  like  incidents,  effects,  and  consequences,  unless  a 
contrary  intention  is  expressed  in  the  mortgage  deed. 

"  (15.)  Nothing  in  this  act  shall  be  construed  to  enable 
a  mortgagor  or  mortgagee  to  make  a  lease  for  any  longer 
term  or  on  any  other  conditions  than  such  as  could  have 
been  granted  or  imposed  by  the  mortgagor,  with  the  con- 
currence of  all  the  incumbrancers,  if  this  act  had  not  been 
passed. 

"  (16.)  Section  not  retrospective.  —  This  section  applies 
only  in  case  of  a  mortgage  made  after  the  commencement 
of  this  act ;  but  the  provisions  thereof,  or  any  of  them,  may, 
by  agreement  in  writing  made  after  the  commencement  of 
this  act,  between  mortgagor  and  mortgagee,  be  applied  to 
a  mortgage  made  before  the  commencement  of  this  act,  so, 
nevertheless,  that  any  such  agreement  shall  not  prejudicially 
affect  any  right  or  interest  of  any  mortgagee  not  joining  in 
or  adopting  the  agreement. 

"(17.)  Contract  for  lease.  —  Tlie  provisions  of  this  section 
referring  to  a  lease  sliall  be  construed  to  extend  and  apply, 
as  far  as  circumstances  admit,  to  any  letting,  and  to  an 
agreement,  whether  in  writing  or  not,  for  leasing  or  letting." 


[♦.GS]  *  Sect.  29.  —  By  Tenants  hif  Elegit,  ^c. 

Leases  l)y  tenants  under  executions,  as  tenants  by  elegit, 
are  conditional,  and  may  be  determined  by  payment  or  satis- 

98 


Cii.  I.  S.  30.]  LEASES   BY   RECEIVERS.  *58 

faction  of  the  debt  and  costs  (w).  Until  so  determined  they 
remain  as  valid  as  any  other  demises  (o).  Where  a  fieri 
facias  has  issued  against  the  property  of  a  debtor,  his  term 
for  years  remains  in  him  until  the  sheriff  has  actually  assigned 
it;  therefore  until  such  assignment  the  purchaser  of  the 
term  cannot  make  a  valid  lease  of  it  (jt>).  With  respect  to 
leases  made  b}^  the  debtor  before  the  execution  of  a  writ  of 
elegit,  the  tenant  by  elegit  (i.<?.,  the  execution  creditor)  is 
a  mere  assignee  of  the  reversion,  and  may,  without  any 
attornment,  sue  or  distrain  for  the  rent  which  becomes  due 
after  the  filing  of  the  writ  and  the  inquisition  thereon  {q)^ 
provided  the  inquisition  be  valid,  but  not  otherwise  (r).  He 
cannot  eject  a  previous  tenant  until  after  his  term  expires 
or  becomes  forfeited,  or  is  determined  by  notice  to  quit  or 
otherwise  (/). 


Sect.  30.  —  By  Receivers. 

Leases  by  receivers. — Receivers  appointed  by  the  High 
Court  cannot  demise  without  the  authority  and  direction  of 
the  court  (^).^     They  are  bound  to  obtain  the  best  terms  (u). 

(n)  Price  v.  Varney,  3  B.  &  C.  733 ;  (r)  Arnold    v.    Ridge,    13    C.    B. 

Cole  Ejec.  566.  745. 

(o)  But  see  Doughty  v.  Stiles,  Rep.  (s)  Doe  d.  Da  Costa  ;•.  Wharton,  8 

temp.  Finch,  115.  T.  R.  2 ;  Cole  Ejec.  566. 

(/))  Playfair  v.  Musgrove,  14  M.  &  (0  Morris  v.  Elnie,  1  Yes.  jun.  130. 

W.  239  ;  3  D.  &  L.  72  ;  Doe  d.  Hughes  A  receiver  may  be  appointed  by  any 

V.  Jones,  9  M.  &  W.  372 ;  1  Dovvl.,  N.  Division  of  the  High  Court  (.Judlca- 

S.  352;  Cole  Ejec.  569.  ture  Act,  1873,  s.  24). 

(7)  Ramsbottom    v.   Buckhurst,   2  (m)  Wynne  v.  Ld.  Newborough,  1 

M.  &  S.  565;  Lloyd  v.  Davies,2  Exch.  Ves.  jun.  164. 
103  ;  Cole  Ejec.  566. 

1  A  receiver  of  a  railroad  may  under  direction  of  the  court,  prior  to 
foreclosure  sale,  continue  to  operate  a  connecting  road  leased  to  the  mort- 
gagor road.     Milteiiberger  r.  Logansport  Ry.  Co.,  106  U.  S.  286,  313. 

And  he  may  be  authorized  to  take  leases  of  other  railway  lines,  and  oper- 
ate them  as  a  part  of  tlie  road  already  in  his  hands,  where  the  exercise  of 
such  power  is  for  the  best  interest  of  all  parties  concerned.  Gibert  v.  Wash. 
City,  Virginia  Midland,  &c.,  R.  R.  Co.,  33  Gratt.  (Va.)  586;  Beach  on 
Receivers,  sec.  357. 

"A  court  of  equity  having  in  charge  the  mortgaged  property  ...  is 
authorized  to  do  all  acts  that  may  be  necessary  within  its  corporate  power  to 

99 


*59  BY   WHOM  TERMS   GRANTED.  [Oh.  I.  S.  31. 

A  lease  under  seal  granted  by  a  receiver  in  a  cause  wherein 
A.  B.  is  plaintiff  and  C.  D.  is  defendant,  for  a  term  of  four- 
teen years,  and  reserving  rent  to  the  receiver  and  to  any 
future  receiver  in  the  cause,  would  create  a  tenancy  by 
estoppel  as  between  him  and  the  lessee,  and  give  a  right  to 
distrain  for  rent  (a;). 

Effect  of  attornment  to  a  receiver.  —  An  attornr»ent  to  a 
receiver  creates  a  tenancy  by  estoppel  between  the  tenant 
and  the  receiver,  which  the  court  applies  to  the  purpose  of 
collecting  and  securing  the  rents  till  a  decree  can  be  pro- 
nounced, taking  care  that  the  tenant  shall  be  protected,  both 
while  the  receiver  continues  to  act,  and  when  by  the  authority 
of  the  court  he  is  withdrawn  (^).  It  does  not  oper- 
[*59]  ate  as  an  attornment  to  the  parties  *  interested  so  as 
to  enable  any  of  them  to  distrain,  for  thereby  the 
object  of  the  court  in  appointing  the  receiver  would  often 
be  effectually  defeated  (2). 

It  may  be  mentioned  here,  that  a  receiver  of  rents  from 
sub-tenants  may  be  appointed  pending  an  action  by  a  landlord 
for  recovery  of  land  (a). 


Sect.  31.  —  By  Lords  of  Manors  and  Copyliolders. 

By  the  lord.  —  Every  one  having  a  lawful  interest  in  a 
manor  may  make  voluntary  grants  of  copyholds  escheated  or 
come  to  his  hands,  as  well  as  admittances,  according  to  the 
custom  of  the  manor,  rendering  the  ancient  rents  and  ser- 

(.t)  Dancer  v.  Hastings,  4  Bing.  2;  Trustees,  20  Beav.  332;  24  L.  J.  Ch, 

cited  in  Morton  v.  Woods,  L.  R.,  3  Q.  640. 

B.  058,  0(i8.  (2)  Evans  v.   Mathias,  7   E.  &   B. 

(//)  Ilufclies  V.  Hughes,  1  Ves.  jun.  500;  see  White  v.  Small,  22  Beav.  72; 

161;   Evans   v.   Mathias,   7   E.    &  B.  26  Id.  191  ;  Barton  i;.  Rock,  22  Beav. 

G02;  26  L.  J.,   Q.   B.   300;    Jolly   v.  81. 

Arbutlinot,  4  De  G.  &  J.  224  ;  28  L.  J.,  («)  Gwatkin  v.  Bird,  52  L.  J.,  Q.  B. 

Ch.  547  ;  Ames  v.  Birkenhead  Docks  262. 

|)rescrve  the  property  and  to  give  it  additional  value,"  &c.  {per  Christian,  J., 
in  GiV)ert  v.  Wash.,  &c.,  R.  R.  Co.,  33  Gratt.  586). 

A  receiver  of  a  lessee  will  not  he  i>ersonally  liahlc  if  he  waive  the  term, 
except  to  the  extent  of  assets  in  iiis  hands.  Martin  v.  Black,  0  Paige  (N.  Y.) 
041,  044  {per  Walworth,  Ciiun.). 

100 


Ch.  I.  S.  31.]     BY   LOKDS    OF   MANORS    AND   COPYHOLDERS.      *G0 

vices,  which  bind  him  who  has  the  inheritance  {h).  But 
voluntary  grants  of  copyhold,  by  the  lord,  can  only  be  made 
according  to  the  custom  of  the  manor  (c).  Where  there  is 
no  custom  for  that  purpose  the  lord  of  a  manor  cannot  make 
a  new  grant  of  copyhold  (d).  The  ancient  rent  and  services 
must  be  reserved :  any  alteration  therein  will  make  the  grant 
void  as  against  the  lord's  successor  (e). 

Leases  of  the  wastes. — By  13  Geo.  3,  c.  81,  s.  15,  lords  of 
manors,  with  the  consent  of  three-fourths  of  the  commoners, 
may  demise  for  not  more  than  four  years  any  part  of  the 
wastes  and  commons,  not  exceeding  one-twelfth  part,  for  the 
best  rent  that  can  be  obtained  by  auction,  the  same  to  be 
applied  in  draining,  fencing,  and  improving  the  residue.  So 
by  custom  the  lord  may  have  power  to  demise  parcels  of  the 
waste  (/),  but  a  custom  for  the  lord  to  grant  leases  of  the 
waste,  without  restriction,  is  bad,  as  amounting  to  a  power 
of  destroying  the  right  of  common  altogether  ((/).  A  copy- 
hold, to  which  a  right  of  common  was  annexed,  having  by 
the  custom  of  the  manor  vested  in  the  lord  by  forfeiture,  and 
he  having  regranted  it  as  a  copyhold  tenement  with  the 
appurtenances ;  it  was  held,  that  having  always  continued 
demisable  whilst  in  the  hands  of  the  lord,  it  was  a  custom- 
ary tenement,  and,  as  such,  Avas  entitled  to  the  right  of 
common  (7^). 

By  copyholders. — A  copyholder  cannot  make  a  lease  for 
more  than  one  year  without  a  licence  or  by  special 
custom,  without  thereby  incurring  a  forfeiture  *  of     [*60] 
his  estate  (i).      In  most  manors  a  copyholder  may 
demise  for  one  year  or  less  without  any  licence  of  the  lord  (^)  ; 

(b)  Badger  v.  Forde,  3  B.  &  A.  153.  (A)  Badger  v.  Forde,  supra. 

(c)  Rex  V.  Welby,  2  M.  &  S.  604 ;  (0  Scriven,  329,  -3.30  (5th  ed.)  ; 
Cole  Ejec.  632.  Anon.,  Moor.  184 ;  East  v.  Harding, 

(d)  Rex  V.  Hornchurch,  2  B.  &  A.  Cro.  Eliz.  498 ;  Jackman  v.  Hoddes- 
189;  Cole  Ejec.  632.  den,  Id.  351  ;  Cole  Ejec.  615,  627. 

(e)  Doe  d.  Rayner  v.  Strickland,  2  (A)  Scriven  Cop.  329  (5th  ed.) ; 
Q.  B.  792.  Cole  Ejec.  627 ;  Frosel  v.  Welsh,  Cro. 

(/)  Ld.  Northwick    v.  Stanway,  3  Jac.  403 ;  ISIathews  v.  Whetton,  Cro. 

Bos.  &  P.  .346.  Car.    233  ;    Goodwin    v.    Longhurst, 

(^)  Badger  r.  Forde,  3  B.&  A.  153;  Cro.  Eliz.   535;   Erish  v.  Rives,   Id. 

Arlett  I'.  Ellis,  7  B.  &  C.  .346 ;  but  see  717. 
Lascelles  v.  Lord  Onslow,  36  L.  T.  459. 

101 


*60  BY   WHOM   TERMS   GRANTED.  [Ch.  I.  S.  ol. 

but  this  is  by  custom  of  the  manor  (I).  A  lease  for  one 
year,  and  so  from  year  to  year  during  ten  years,  being  in 
effect  a  lease  for  ten  years,  is  a  forfeiture  but  otherwise  of 
a  lease  for  one  year,  with  a  covenant  for  the  holding  it  for  a 
longer  time  at  the  will  of  the  lessor  (w).  A  lease  for  one 
year  and  so  from  year  to  year  for  the  life  of  the  lessee,  being 
a  lease  for  two  years  at  least,  is  not  good  (?i).  So  if  it  be  for 
a  year  except  one  day,  and  so  on  from  year  to  year,  excepting 
one  day  in  every  year ;  for  it  is  a  certain  lease  for  two  years 
excepting  two  days,  which  is  a  lease  in  effect  for  more  than 
one  year ;  and  although  there  be  the  mtermission  of  a  day,  yet 
there  is  a  mere  evasion  and  not  material  (o).  So  if  a  copy- 
holder makes  three  leases  together,  each  to  commence  within 
two  days  after  the  expiration  of  the  other,  it  is  a  mere  evasion 
of  the  custom,  and  therefore  not  good  (j?).  So  a  lease  for  more 
than  one  year,  though  intended  only  as  for  a  collateral  secur- 
ity, is  bad,  if  it  amounts  to  a  present  demise  (^).  A  lease  for 
years,  without  licence  from  the  lord,  is  not  good  without  a 
special  custom,  though  the  lease  be  made  by  parol,  or  be  not 
in  possession,  but  to  commence  in  futuro ;  and  such  lease  is 
a  forfeiture  if  it  be  a  good  lease  as  between  the  parties  (r). 

Under  special  custom.  —  By  special  custom,  a  copyholder 
may  make  leases  for  more  than  one  year,  or  for  life,  and  a  cer- 
tain number  of  years  after,  without  licence  from  the  lord  (s). 
A  custom  for  copyholders  in  fee  to  lease  for  any  number 
of  years  without  licence,  on  condition  of  the  term  ceasing 
on  the  lessor's  death,  is  a  good  custom  (t').  The  powers 
granted  by  the  Settled  Estates  Act  (i*),  includes  powers  to 
the  lords  of  settled  manors  to  give  licences  to  their  copyhold 
and  customary  tenants  to  grant  leases  of  lands  held  by  them 
of  such  manors,  to  the  same  extent,  and  for  the  same  pur- 
poses, as  leases  may  be  granted  of  freehold  hereditaments 

(I)  Turner  v.  Hodfros,  Hetlcy,  126 ;  (p)  Mathews  v.  Whetton,  Cro.  Car. 

Lit.  Rep.  233  ;  Cole  Ejec.  G27.  233. 

(»«)  Lafly    Montague's    case,  Cro.  (7)  Morris  v.  Twist,  2  Mod.  79. 

Jac.  301;  Cole  Ejee.  015.  (r)  Com.    Dig.    tit.    Copyhold    (K. 

(n)  Luttrell   v.   Weston,  Cro.  Jac.       3). 
308;  Cole  Ejec.  34,  442.  (.s)  Seriven  Cop.  330  (f)th  ed.). 

(o)  Lady     Montague's     case,  Cro.  (/)  Turner  v.  Hodges,  Ilutt.  101. 

Jac.  301.  («)  ^l"'*".  ^• 

102 


Ca.  I.  S.  31.]     BY    LORDS    OF    MANORS    AND   COPYHOLDERS.     *G1 

under  the  act  (2;).  The  grantmg  of  a  licence  is  entirely  in 
the  discretion  o\  the  lord,  and  the  court  will  not  compel  him 
to  grant  a  licence,  even  where  there  is  a  custom  to  pay  a 
certain  sum  for  every  year  of  the  term  (?/). 

Under  licence  from  the  lord.  —  A  copyholder  having 
licence  to  demise,  ought  not  to  exceed  the  *  licence,  [*61] 
otherwise  the  lease  is  bad  (2)  ;  but  he  may  lease  for 
fewer  years  than  his  licence  allows  (a).  If  the  lord  licence 
his  copyholder  for  life,  to  make  a  lease  for  three  years,  if  he 
so  long  lives,  a  lease  for  three  years  absolutely  is  good  (6)  ; 
because  a  lease  by  a  copyholder  for  life  determines  by  his 
death.  If  the  lord  licence  upon  condition,  the  condition  is 
void :  for  he  gives  nothing,  but  only  dispenses  with  the  for- 
feiture (c).  A  tenant  at  will  of  a  manor  cannot  grant  a 
copyholder  a  licence  to  alien  for  years ;  and  if  a  tenant  for 
life  of  a  manor  grants  a  licence  to  alien  for  years,  it  deter- 
mines at  his  death  (<7). 

What  lease  is  a  forfeiture.  —  A  lease  without  licence,  and 
contrary  to  the  custom,  in  order  to  amount  to  a  forfeiture, 
must  be  a  complete  demise  ;  therefore,  where  a  copyholder 
demised  his  copyhold  for  a  year,  and  agreed  to  grant  a  fur- 
ther term  of  twenty-one  years,  provided  he  could  obtain  of 
his  lord  a  licence  for  that  purpose,  the  licence  was  held  to 
be  a  condition  precedent,  and  therefore  that  no  forfeiture 
was  incurred  (g).  If  the  interest  actually  granted  be  within 
the  period  allowed  by  the  custom  of  the  manor,  although  the 
lessor  covenants  that  the  lessee  shall  enjoy  the  land  for  a 
longer  period,  no  forfeiture  is  incurred ;  the  distinction  being 

(x)  40  &  41  Vict.  c.  18,  s.  9.  (6)  Worledge  v.  Benbury,  Cro.  Jac. 

(//)  He.u-.  (;.  Hale,  9  A.  &.  E.  339.  436;    Cole   Ejec.  615;    Scriven    Cop. 

(c)  Hadcion  v.  Arrowsmlth,  Owen,  332,  .5th  ed. 
73;  Cro.  Eliz.  461;  Jackson  i'.  Neal,  (c)  Haddon    v.    Arrowsmith,    Cro. 

Cro.  Eliz.  394 ;  Scriven  Cop.  332  (5th  Eliz.  461 ;  Doe  d.  Wood  v.  Morris,  2 

ed.)  ;    Com.    Dijr.    tit.   Copyhold    (K.  Taunt.  52 ;  Cole  Ejec.  628. 
3)  ;  Doe  d.  Robinson  v.  Bousfield,  6  (d)  Com.    Dig.    tit.    Copyhold    (C. 

Q.  B.  422  ;  1  C.  &  K.  558.  3) ;  Scriven  Cop.  331  (5th  ed.). 

(rt)  Goodwin    V.    Longhurst,    Cro.  (e)  Bac.    Abr.  tit.  Leases    (1,   6)  ; 

Eliz.  535;  Worledge  v.  Benbury,  Cro.  Price  v.  Bircii,  4  M.  &  G.  1 ;  1  Dovvl. 

Jac.  437;    Isherwood  v.   Oldknow,  3  N.  S.  720;  Lenthall  i-.  Thomas,  2  Keb. 

M.  &  S.  382 ;  Easton  v.  Pratt,  2  H.  &  267 ;    Pester  v.   Cater,   9    M.   &   W. 

C.  676;  33  L.  J.,  Ex.  233;  Cole  Ejec.  315. 
C15. 

103 


*62  BY   WHOM  TERMS  GRANTED.  [Ch.  I.  S.  32. 

between  an  interest  actually  granted  and  a  matter  which 
rests  entirely  in  contract  (/).  No  one  can  take  advantage  of 
the  forfeiture,  excejDt  the  party  who  was  lord  at  the  time  it 
occurred.  The  remainderman  or  reversioner,  after  the  death 
of  the  lord  without  entry  or  seizure  for  the  forfeiture,  has 
no  such  right  (^).  The  admittance  of  a  copyholder  after  a 
forfeiture  has  been  incurred,  is  a  waiver  of  such  forfeiture  ; 
and  any  act  equally  solemn  will  operate  in  the  same  manner. 
A  waiver  does  not  operate  as  a  new  grant,  but  the  tenant  is  in 
of  his  old  title  (/i).  If  a  copyholder,  after  a  lease  by  licence, 
forfeit  his  copyhold,  the  lord  cannot  avoid  the  lease  (i). 

Effect  of  leases  by  copyholders.  —  A  lease  by  a  copyholder 
not  warranted  by  the  custom,  and  without  the  licence  of  the 
lord,  is  good  against  the  parties  themselves  and  against  every 

one  but  the  lord  (^) ;  and  as  against  the  lord  it  is 
[*62]     only  *  a  ground  of  forfeiture,  which  he  may  waive  {l}. 

If  a  copyholder  make  a  lease  by  licence,  the  lessee 
may  assign  without  licence,  or  make  an  under-lease,  for  the 
lord  by  liis  licence  has  parted  with  his  interest ;  so  if  the 
lessor  after  a  lease  by  licence  die  without  heir,  the  lessee 
shall  have  it  for  his  term  against  the  lord,  for  the  licence  is  a 
confirmation  of  the  lord  (»«). 


Sect.  32.  —  Bi/  Agents  and  Bailiffs. 

(a)  Agents. 

Authority  of.  —  An  agent  having  sufficient  authority  may 
bind  his  principal  by  leases  and  agreements  for  leases  made 

(/)  Lady    Montague's    case,   Cro.  (I:)  Salisbury   d.   Cooke    ;•.    Ilurd, 

Jac.  301  ;  Lentliall  ?;.  Thomas,  2  Keb.  Cowp.  481;  Wells  i;.  rartridge,  Cro. 

267;  Doe  d.   Coore  v.  Clare,  2  T.  B.  Eliz.    469:    Ashfield   v.  Asbfield,  Sir 

739;  Riehards  r.  Ceely,  3  Keb.  638;  W.   Jon.    157;    Doe    d.    Tressider   v. 

Cole  Ejec!.  610.  Tressider,  1  Q.  B.  416 ;  Doe  d.  Uobin- 

(v)  Lady  Montnfrue's  case,  supra  ;  son  v.  Boiisfield,  1   C.  &  K.  558;  6  Q. 

Eastoourt    r.    Weeks,    1     Salk.    186;  B.  492;    Downinj^'ham's  case,  Owen, 

Margaret    Podger's    case,   9    Co.  R.  17;  Cole  Ejec.  627. 

107    a ;    1    l?ro\vnl.   181 ;    2    Id.    134,  (/)  Doe  d.  Robinson  v.  Bousfield,  6 

153  ;  Cole  Ejec.  615.  Q.  B.  492 ;   1  C.  &  K.  558. 

(/i)  Doc  d.  Tarrant  r.  Ilcliier,  3  T.  (m)  Johnson  v.  Smart,  1  Boll.  Ab. 

IM71.  508,1)1.14. 

(/)  Com.  Dig.  tit.  Copyhold  (C.  3)  ; 
Clarke  v.  Arden,  16  C.  B.  227. 

104 


Ch.  I.  S.  32.]       LEASES   BY   AGENTS    AND    BAILIFFS.  *62 

for  him  and  in  his  name  and  on  liis  behalf  (n).^  If  the 
lease  or  agreement  be  under  seal,  the  agent's  authority  to 
execute  it  must  also  be  under  seal  (o).  But  if  the  lease  or 
agreement  be  not  under  seal,  the  agent's  authority  need  not 
be  under  seal,  nor  even  in  writing,  notwithstanding  the  4th 
section  of  the  Statute  of  Frauds  (p).  The  agent  should  not 
exceed  his  authority,  otherwise  the  principal  will  not  be 
bound,  and  the  agent  will  incur  a  personal  liability  {q}.  The 
authority  of  the  agent  to  sign  the  particular  contract,  or 
such  a  contract,  must  be  proved,  if  disputed,  in  an  action  or 
suit  against  the  principal  (r).  A  steward  or  land  agent  has 
no  authority  as  such  to  enter  into  contracts  for  leases  (s)  ; 
but  a  power  to  "  manage  and  superintend  estates  "  gives  an 
authority  to  contract  for  the  granting  of  customary  leases 
according  to  the  nature  and  locality  of  the  property  to  be 
demised  (t').  A  farm  bailiff  with  authority  to  let  from  year 
to  year  on  the  usual  terms  and  to  receive  rents,  has  no 
implied  authority  to  let  on  unusual  terms,  or  to  make  any 


(w)  Hamilton  v.  Earl  Clanricarde,  1  (q)  Fenn  i\  Harrison,  3  T.  R.  758 ; 

Bro.  P.  C.  341  ;  Ridgway  v.  Wharton,  Hamilton  v.  Earl  Clanricarde,  5  Bro. 

3  De  G.,  M.  &  G.  077,  688;  6  H.  L.  P.  C.  547;  Speeding  v.  Nevell,  L.  R., 

Cas.  238.  4  C.  P.  212. 

(o)  3  Bac.  Abr.  408 ;  Com.  Dig.  tit.  (r)  Blore   v.  Sutton,  3   Mer.  237  ; 

Attorney  (C.  1),  (C.  5);  Harrison  v.  Ridgvvay  v.  Wharton,  3  De  G.,  M.  & 

Jackson,   7    T.   R.   207  ;    Horsley   v.  G.  677,  686  ;  27  L.  J.,  Ch.  46  ;  6  H.  L. 

Rush,  Id.  209.  Cas.  238;  Firth  v.  Greenwood,  1  Jur., 

(p)  29  Car.  2,  c.  3;  Coles  v.  Treco-  N.  S.  806;   Turner  v.  Hutchinson,  2 

thick,   9   Ves.   234,   250 ;    Clinan    i',  F.  &  F.  185  ;  Spedding  ;,■.  Nevell,  L. 

Cooke,   1   Sch.   &  Lef.   22;    Dyas    v.  R.,  4  C.  P.  212. 

Cruise,   2   Jon.    &  Lat.  401 ;    Clarke  (.s)  Collen    r.    Gardiner,    21    Beav. 

V.  Fuller,  16  C.  B.,  N.  S.  34 ;  Forster  540 ;  Mortal   t;.   Lyons,  8  Ir.  R.  Ch. 

V.  Rowland,  7  H.  &  N.  103;  Heard  v.  112;  Ridgway  v.  Wharton,  supra. 

Pilley,  L.  R.,  4  Ch.  Ap.  548.  (t)  Peers  v.  Sneyd,  17   Beav.  151. 


1  If  the  agent  of  lessor  contract  in  his  own  name,  in  behalf  of  his  princi- 
pal, the  lease  will  bind  lessee  by  estoppel,  and  agent  (in  this  case  a  committee) 
can  bring  suit  for  rent  in  own  name.     Stott  v.  Rutherford,  92  U.  S.  107. 

An  agent  who  takes  a  lease  expressly  contracting  for  a  foreign  principal 
is  not  necessarily  personally  liable.  The  question  is  one  of  intent.  The  pre- 
sumptions are  stronger  against  him  than  if  he  had  a  domestic  principal,  yet, 
if  the  contract  be  in  name  of  foreign  principal  and  upon  his  credit,  agent 
will  not  be  liable.     O'Neil  v.  Wells,  2  Russ.  &  Ches.  (N.  8.)  205,  206,  207. 

105 


*63  BY   WHOM   TERMS    GRANTED.  [C«.  I.  S.  32. 

special  stipulations  without  the  express  authority  of  his  prin- 
cipal (u). 

Subsequent  ratification.  —  If  an  agent  acts  without  suffi- 
cient authority,  his  acts  may  be  subsequently  adopted 
[*63]  and  ratified  in  writing  by  his  principal  (2:),  *  or  even 
without  any  writing  (^).  Even  where  an  agent  exe- 
cutes a  deed  on  behalf  of  his  principal,  but  without  sufficient 
authority,  the  latter  may  adopt  and  ratify  the  deed  by  re- 
delivering it,  or  by  anything  tantamount  to  a  re-delivery  (^z). 
An  authority  created  by  deed  may  be  revoked  without 
deed  (a). 

Agent  should  sign  name  of  principal.  —  An  agent,  who  has 
sufficient  authority,  whether  by  deed  or  otherwise,  should 
execute  any  lease  or  agreement  in  the  name  of  his  principal, 
and  not  in  his  own  name  only  (5).     Thus,  "A.  B.  (seal)  by 

E.  F.,  his  attorney,"  to  which  may  be  added,  "by  power  of 
attorney  hereunto  annexed  or  a  copy  whereof  is  hereunto 
annexed  or  hereupon  indorsed." 

Form  of  signature,  &c.  —  If  the  writing  be  not  under  seal,  it 
should  be  signed  thus,  —  "  A.  B.  by  E.  F.  his  attorney,"  or 
"Per  pro.  A.  B.,  E.  F.,  or  to  that  eifect"(6'). 

Implied  warranty  of  authority.  —  If  an  agent  executes  a 
lease  or  agreement  professedly  as  attorney  or  agent  for 
another,  he  thereby  impliedly  warrants  and  promises  that  he 
has  sufficient  authority  from  his  principal  to  execute  such 
contract  on  his  behalf,  and  an  action  will  lie  against  him 
personally  or  against  his  representatives,  for  the  breach  of 
such  warranty  or  promise,  if  he  really  has  no  such  au- 
thority ((Z). 

(h)  Turner  v.  Hutchinson,  2  F.  &       White  ?•.  Cuyler,  6  T.  R.  177 ;  Wilks 

F.  185.  As  to  House-Agcnt,  sec  post,  7'.  Hacli,  2  East,  142  ;  Appieton  r. 
04.  Binks,  5  East,  148 ;  Tanner  i-.  Cliris- 

(z)  Fitzmaurice  v.  Bayley,  6  E.  &       tian,  4  E.  &.  B.  5!)1 ;  Parker  v.  Win- 

B.  HG8 ;  reversed  in  error  on  another  low,  7  E.  &  B.  042,  947 ;  Cooke  v. 
point.  8  E.  &  B.  004 ;  0  H.  L.  Cas.  78.       Wilson,  1  C.  B.,  N.  S.  153  ;  2(5  L.  .T., 

0/)  Rodmeil  v.  Eden,  1  F.  &  F.  542.  C.  P.  15;  Sa.xon  ?•.  Bhike,  2i)  Beav. 

(z)  Shep.    Touch.    57  ;    Tupper    v.  438  ;  M'Ardle  v.  Irisli  Iodine  Manu- 

Foulkes.  y  C.  B.,  N.  S.  707  ;  :]()  L.  J.,  facturinf^  Co.,  15  Ir.  C.  L.  Rep.  140. 

C.  P.  214.  (r)  Alexander  V.  Sizer,  L.  R.,  4  E.\. 
.   (rt)  Rex    r.    Wait,    11    Price,    508;  102. 

Manser  r.  Black,  0  Hare,  443.  (d)  Collon    r.   Wriiriit,   7   E.   &  B. 

(h)  Combe's  case,  0  Co.  R.  77  a  ;       301  ;  8  Id.  047;  27  L.  J.,  Q.  B.  215; 

lOG 


Ch.  I.  S.  32.]      LEASES   BY    AGENTS    AND   BAILIFFS.  *6-4 

Agent  when  personally  liable.  —  If  an  agent  executes  a  lease 
or  agreement  in  his  own  name  only,  whether  under  seal  (e), 
or  not  under  seal  (/),  he  will  be  personally  liable  as  a  prin- 
cipal, although  in  the  body  of  the  instrument  he  is  described 
as  agent  for  A.  13.,  and  is  therein  stated  to  make  it  for  and 
on  behalf  of  A.  B. ;  because  an  agent  may,  if  he  please,  con- 
tract a  personal  liability  for  and  on  behalf  of  his  principal  (,^). 
Parol  evidence  would  not  be  admissible  to  exonerate  the  agent 
from  such  personal  liability,  for  that  would  contradict  the 
writing  (7i).  But  it  would  be  admissible  to  cliarge  the  prin- 
cipal^ and  to  enable  him  to  sue  or  be  sued  on  the  contract  (i). 
To  avoid  such  personal  liability  the  agent  should  always  sijpi 
as  agents  and  not  with  his  own  name  only  (/c). 

*  Misrepresentation  by  agent.  —  With  respect  to  mis-  [*64] 
representations  made  by  agents  on  the  sale  or  letting 
of  property,  whereby  a  person  is  induced  to  enter  into  a  dis- 
advantageous contract,  which  otherwise  he  would  not  have 
done,  it  is  material  to  ascertain  whether  such  misrepresenta- 
tions were  fraudulently  made.  If  not,  the  contract  cannot 
be  avoided  for  "  fraud,  covin,  and  misrepresentation "  (V). 
This  was  expressly  held  in  Cornfoot  v.  Fowke  (m).  There 
the  plaintiff  put  a  furnished  house  into  the  hands  of  an  agent 
to  let  at  a  stipulated  rent.     The   plaintiff  knew,  but  the 

Simons  v.  Patchott,  7  E.  &  B.   568;  Chadwick  d.  Maden,  9  Hare,  191 ;  Pry, 

Pow  V.  Davis,  1  B.  &  S.  220;  30  L.  J.,  s.  153. 

Q.  B.  257  ;  Spedding  v.  Nevell,  L.  R.,  («)  Higgins  v.  Senior,  supra  ;  Hum- 

4  C.  P.  212.  frey  v.  Dale,  7  E.  &  B.  2GG;  E.,  B.  & 

(e)  Appleton  v.  Binks,  5  East,  148.  E.  1004. 

(/)  Tanner  v.  Christian,  4  E.  &  B.  (k)  Green  v.  Kopke,  18  C.  B.  549 ; 

591  ;  Cooke  v.  Wilson,  1  C.  B.,  N.  S.  Clay  v.  Southern,  7  Exch.  717  ;  27  L. 

153 ;   26  L.  J.,  C.  P.   15 ;    Parker  v.  J.,  Ex.  202 ;  Parker  v.  Winlow,  7  E. 

Winlow,  7  E.  &  B.  942,  947  ;  Saxon  &  B.  942 ;  Deslands  v.  Gregory,  2  E. 

V.  Blake,  29  Beav.  438.  &  E.  602;  Cooke  v.  Wilson,  I'c.  B., 

((f)  Norton   t-.   Herron,   1    C.   &   P.  N.  S.  153 ;  Alexander  v.  Sizer,  L.  R., 

648;    Ry.    &   Moo.    229;    Tanner   v.  4  Ex.  102. 

Christian,  4  E.   &  B.  591 ;  Cooke  v.  (I)  Cornfoot  v.  Fowke,  6  M.  &  W. 

Wilson,  1  C.  B.,  N.  S.  153;  26  L.  J.,  358;  Lord  Abinger,  C.  B.,  diss.     See 

C.  P.   15;  Parker  v.  Winlow,  7  E.  &  notes  to  Pasley  v.  Freeman,  2  Sm.  L. 

B.  942,  947.  C,  8tli  ed.,  p.  87,  where  it  is  said  that 

(h)  Iliggins  V.   Senior,  8  M.  &  W.  Cornfoot  c.  Fowke  is  "by  no  means 


844;  Humble  v.  Hunter,  12  Q.  B.310 
Jones  V.  Littledale,  6  A.  &  E.  480 
Magee  v.  Atkinson,  2  M.  &  W.  440 


universally  admitted  as  law;"Feret 
V.  Hill,  15  C.  B.  207. 
{m)G  M.  &  W.  358. 

107 


*65  BY    WHOM   TERMS    GRANTED.    .  [Ch.  I.  S.  32. 

agent  did  not  know,  that  the  adjoining  house  was  a  bawdy- 
house.  That  the  defendant  had  been  informed  by  the  agent, 
in  answer  to  an  inquiry,  that  there  was  no  objection  to  the 
house,  was  held  not  to  be  a  defence  to  an  action  for  not 
taking  it  (m).  But  if  the  agent  made  such  representations 
fraudulently,  the  principal  will  be  liable,  although  he  did 
not  instruct  his  agent  to  make  au}^  representations  on  the 
subject  (w).  So  if  the  principal  authorizes  any  such  false 
representations,  or  knowingly  employs  an  agent,  ignorant  of 
the  particular  defect  or  objection,  in  order  that  the  latter 
may  innocently,  but  inaccurately  answer  questions  on  the 
subject,  it  by  no  means  follows  that  the  party  defrauded  can 
repudiate  and  rescind  the  whole  contract,  by  reason  of  the 
fraud  practised  upon  him  (o),  although  sometimes  that  may 
be  done  immediately  after  the  fraud  is  discovered,  provided 
the  parties  can  be  replaced  in  statu  quo,  but  not  otherwise  (o). 
This  can  seldom  if  ever  happen  where  an  estate  has  passed, 
or  possession  has  been  taken. 

House-agent.  —  A  house-agent  letting  a  house  for  his  em- 
ployer seems  to  be  liable  if  he  neglects  to  make  reasonable 
inquiries  as  to  the  solvency  of  the  tenant.  In  a  case  where 
the  house-agent  introduced  a  tenant,  and  charged  5  per  cent, 
commission,  it  was  held  to  be  a  question  for  the  jury,  in 
an  action  brought  by  his  employer  in  consequence  of  the 
tenant's  insolvency,  whether  it  was  part  of  the  house-agent's 
duty  to  make  reasonable  inquiries  into  the  eligibility  of  the 
tenant.  The  court  refused  to  set  aside  a  verdict  for  the 
plaintiff,  and  the  several  members  of  the  court  expressed 
strong  opinions  as  to  the  liability  of  the  house-agent.  "  What 
does  the  house-ajrent  receive  his  commission  for,"  asked 
Wightman,  J.,  "except  for  making  inquiries  as  to  the  fitness 
of  the  tenant?" (7J>).  It  seems  doubtful  whether  a 
|-*05j      *  house-agent- has   iin])licd   authority   to   let   persons 


(m)  0  M.  &  W.  .358.  Fcrc't  v.  Hill,  15  C.  B.  207  ;  Clarke  v. 

(n)  See  Barwick  v.  English   .Toint  Dickson,  K.,  B.  &  K.  148. 
Stock   Bank,    L.   K.,  2   Ex.   2J9,    E.\.  (/-)  IKys  r.  Tindall,  1  B.  &  S.  200; 

Cii.  :30  L.  J.,Q.  B.  3G2;    4  L.   T.  40.!;    0 

(o)  Hunt    f.     Silk,    5    East,    449;  W.  R.  004. 
Blackburn    r.   Sniitli,    2    Excli.    7H:'.  ; 

108 


Ch.  I.  S.  32.]      LEASES    BY    AGENTS   AND   BAILIFFS.  *65 

into    possession ;  but   slight  evidence   will  ]je  sufficient    to 
prove  that  he  had  express  authority  (5'). 

Right  of  house  agent  to  commission.  —  No  case,  SO  far  as  the 
editor  is  aware,  expressly  decides  what  commission,  if  any, 
a  house-agent  finding  a  person  ready  to  be  tenant,  biit  whom 
liis  principal  without  reason  declines  to  accept,  is  entitled  to 
claim.  In  Prickett  v.  Btvhjer  Cr),  it  was  held  that  an  agent 
employed  to  sell  a  property  at  \\  per  cent,  commission,  and 
who  found  a  purchaser,  who  made  a  binding  offer,  was 
entitled,  on  his  principal  declining  the  offer,  to  sue  on  a 
quantum  meruit.,  and  it  was  said  by  Wiles,  J.,  to  recover  the 
whole  of  the  agreed  commission.  The  principle  of  this  case 
would,  it  is  conceived,  apply  to  some  extent  to  the  case  of  a 
house-agent  procuring  a  binding  offer  to  accept  a  lease  from 
a  person  to  whom  as  tenant  no  reasonable  objection  could  be 
taken. 

It  is  believed,  however,  to  be  a  common  practice  for  house- 
agents  to  agree  that  "  commission  is  only  to  be  chargeable 
on  a  letting  being  carried  out  through  their  instrumentality," 
and  if  such  an  agreement  (which  is  frequently  expressed  in 
a  printed  register,  &c.)  ca,n  be  proved,  no  commission  or 
even  a  quantum  meruit  would  seem  to  be  chargeable  till  an 
absolutely  binding  contract  has  been  concluded. 

Amount  of  commission.  —  It  may  be  useful  to  insert  here 
the  "  Terms  of  Commission  authorized  by  the  Institute  of 
Estate  and  House- Agents."     They  are  :  — 

For   Letting   Unfurnished   Houses,   or   Disposing   of 
Leases,  other  than  Ground  Leases. 

If  let  for  three  years  or  less,  X5  per  cent,  on  one  year's 
rent;  if  for  more  than  three  years,  £7 J  per  cent,  on  one 
year's  rent,  and  (in  either  case)  upon  the  premium  or  con- 
sideration X5  per  cent,  up  to  .£1,000,  and  <£2^  per  cent,  on 
the  residue,  and  the  commission  on  any  sum  obtained  for  fix- 
tures, furniture,  or  effects  of  any  kind,  of  .£5  per  cent,  up  to 
X500,  and  £2^  per  cent,  on  the  residue. 

(9)  Slacke  v.  Crewe,  2  F.  &  F.  59.  (r)  26  L.  J.  C.  P.  33 ;  1  C.  B.  N.  S. 

296. 

109 


'66  BY   WHOM   TERMS    GRANTED.  [Ch.  I.  S.  32. 


Foe,  Letting  Furnished  Houses  in  Town  or  Country. 

When  let  for  a  year  or  less  period,  Xo  per  cent,  on  the 
rental. 

When  let  for  more  than  a  year,  £5  per  cent,  on  first  year's 
rent,  and  <£2^  per  cent,  on  rent  for  remainder  of  term. 

Where  a  property  is  let,  and  the  tenant  afterwards  pur- 
chases, the  commission  for  selling  will  then  become  charge- 
able, less  the  amount  previously  paid  for  letting. 

[*66]     *FoR  Valuations  or  Sale  of  Furniture,  Fix- 
tures, AND  Other  Effects. 

X5  per  cent,  up  to  <£500,  and  £2^  per  cent,  on  the  residue. 

The  commission  may  be  lost  by  revocations  of  the  instruc- 
tions to  let,  but  a  quantum  meruit  may  be  recovered  for 
expense  and  trouble  incurred  before  the  revocation  (s). 

House-agent  must  be  licensed.  —  B}^  24  &  25  Vict.  C.  21,  S. 
10,  "every  person  who,  as  an  agent  for  any  other  person, 
shall,  for  or  in  expectation  of  fee,  gain  or  reward  of  any 
kind,  advertise  for  sale  or  for  letting  any  furnished  house  or 
part  of  any  furnished  house,  or  who  shall  by  any  public  notice 
or  advertisement,  or  by  any  inscription  in  or  upon  any  house, 
shop,  or  place,  used  or  occupied  by  him,  or  by  any  other  ways 
or  means,  hold  himself  out  to  the  public  as  an  agent  for  sell- 
ing or  letting  furnished  houses,  and  who  shall  let  or  sell,  or 
agree  to  let  or  sell,  or  make,  or  offer,  or  receive  any  proposal, 
or  in  any  way  negotiate  for  the  selling  or  letting  of  any  fur- 
nished house  or  part  of  any  furnished  house,  shall  be  deemed 
to  be  a  person  using  and  exercising  the  business,  occupation 
and  calling  of  a  house-agent  within  the  meaning  of  this  act 
and  the  Schedule  (B.)  hereto  (0,  and  shall  be  licensed 
accordingly :  pi-ovided  that  no  person  shall  be  deemed  to  be 
such  house-agent  by  reason  of  his  letting  or  agreeing  or  offer- 

(s)  Simpson  v.  Lamb,  25  L.  J.  C.  "  Licence  to  he  taken  out  yearly  after 

P.  113;  17  C.  B.  G03.     In  tiiis  case  the  Gth  day  of  July,  18G2,  hy  every 

the  instructions  were  to  sell  an  ad-  person  who  shall  use  or  exercise  the 

vowson.  business,  occupation   or  calling  of  a 

(/■)  Schedule   B.   is   as    follows:—  house  agent  .  .  .  2l.0s.0d." 

110 


Cii.   I.  S.  32.]      LEASES   BY  AGENTS   AND   BAILIFrS.  *67 

ing  to  let,  or  in  any  way  negotiating  for  the  letting  of  any 
house  not  exceeding  the  annual  rent  or  value  of  twenty-five 
pounds :  provided  also,  that  any  story  or  flat  rated  and  let 
as  a  separate  tenement  shall  be  considered  to  be  a  house  for 
the  purpose  of  this  enactment." 

Duration  of  a  licence.  —  By  sect.  11,  "  The  Commissioners 
of  Inland  Revenue,  and  any  person  authorized  by  them,  shall 
after  the  5th  of  July,  1861,  grant  licence  to  any  person  who 
shall  apply  for  the  same  to  use  and  exercise  the  business, 
occupation  and  calling  of  a  house-agent,  which  licence  shall 
also  authorize  the  person  to  whom  it  is  granted  to  use  and 
exercise  the  calling  or  occupation  of  an  appraiser ;  and  any 
such  licence  issued  between  the  5th  of  July  and  the  5th  of 
August  in  any  year  shall  be  dated  on  the  6th  of  July,  and 
any  such  licence  issued  at  any  other  time  shall  bear  the  date 
of  the  day  on  which  the  same  shall  be  issued,  and  every 
such  licence  shall  continue  in  force  from  the  day  of  the  date 
thereof  until  and  upon  the  5th  of  July  then  next  following 
and  no  longer." 

Penalty   for    acting    without   licence.  —  By  sect.   12,    "every 
person  who  shall  use  or  exercise  the  business,  occupation  or 
calling  of  a  house-agent,  without  having  a  licence  in 
*  force  under  this  act  so  to  do,  shall  forfeit  the  sum     [*67] 
of  twenty  pounds." 

From  the  wording  of  this  section  it  would  seem  not  to  be 
applicable  to  an  isolated  letting  (although  for  commission) 
by  an  unprofessional  person. 

Saving  for  land-agent,  &c.  —  Sect.  13  provides,  "  that  this 
act  shall  not  extend  to  require  any  agent  employed  in  the 
management  of  landed  estates,  or  any  attorney,  solicitor, 
proctor,  writer  to  the  signet,  agent  or  procurator  admitted 
in  any  court  of  law,  or  any  conveyancer  who  shall  as  such 
have  taken  out  his  annual  certificate,  or  any  auctioneer  or 
appraiser,  having  in  force  a  licence  as  such,  to  take  out  a 
licence  under  this  act  as  a  house-assent." 

(b)  Bailiffs. 

Power  of  bailifis  to  grant  leases.  —  A  bailiif  of  a  manor 
cannot,  by  virtue   of  his  office,  make  leases  for  years ;  for 

111 


*67  BY   "WHOM   TERMS   GRANTED.  [Ch.  I.  S.  23. 

liis  business  is  only  to  collect  the  rents,  gather  the  fines, 
look  after  the  forfeitures,  and  such  like :  he  has  no  estate  or 
interest  in  the  manor  itself,  and  therefore  cannot  contract  for 
any  certain  interest  thereout:  but  the  lord  of  the  manor  may 
give  him  a  special  power  to  make  leases  for  years  as  he  may 
do  to  any  stranger ;  and  then  such  leases,  if  they  are  pursu- 
ant to  the  power,  and  made  in  tlie  name  of  the  lord,  will  be 
as  good  as  leases  by  the  lord  himself.  A  general  bailiff  of 
a  manor  may  make  leases  at  will  without  any  special  author- 
ity, because,  having  to  collect  an  answer  for  the  rents  of  the 
manor  to  liis  lord,  if  he  could  not  let  leases  at  will  the  lord 
might  sustain  great  prejudice  by  absence,  sickness,  or  other 
incapacity  to  make  leases  when  any  of  the  former  leases 
were  expired ;  and  such  leases  at  will  are  for  the  benefit  of 
the  lord,  and  can  be  no  ways  prejudicial  to  him,  because  he 
may  determine  his  will  when  he  thinks  fit.  Such,  however, 
must  be  taken  to  be  strict  tenancies  at  will,  and  not  from 
year  to  year  (u). 

(u)  Shopland  v.  Rydler,  Cro.  Jac.  55;  Gybson  v.  Searls,  Cro.  Jac.  84,  176. 

112 


♦CHAPTER  II. 

TO  WHOM   TERMS   MAY  BE   GRANTED. 


[*68] 


SECT 
1. 
2. 


9. 
10. 


PAGE 

Generally 68 

Ecclesiastical  Persons  ...  08 

Trustees  for  Charitable  Uses  69 

Infants 70 

Married  Women 71 

Lunatics 72 

Convicts 72 

Aliens 72 

Corporations 73 

Parish  Officers 74 


11.  To  Trustees  of  Friendly  So- 

cieties       

12.  Trustees  of  Public  Baths  and 

Wash-houses    .... 

13.  Trustees  of  Free  Public  Li 

braries,  Museums,  &c.  . 

14.  Ratepayers   for  Public    Im 

provements      .... 

15.  Trustees  of  Renewable  Lease 

holds  

16.  Agents  and  Trustees    . 


77 

77 
78 


Sect.  1.  —  Generally. 


General  rule.  —  Every  person  who  is  not  rendered  incom- 
petent by  some  legal  disability  is  capable  of  being  a  lessee.^ 


Sect.  2.  —  To  Ecclesiastical  Persons? 

By  1  &  2  Vict.  c.  106,  s.  28,  "it  shall  not  be  lawful  for  any 
spiritual  person,  holding  any  cathedral  preferment  or  bene- 

1  In  this  miscellaneous  class  may  be  named  the  United  States  government. 
Mills  V.  United  States,  19  Ct.  of  Claims,  79 ;  Conn.  Mut.  Life  Ins.  Co.  v. 
U.  S.,  21  Ct.  of  Claims,  195.  In  the  first-named  case  written  leases  approved 
by  Generals  Augur,  Ord,  and  Sheridan  were  held  void  because  not  approved 
by  the  quartermaster-general,  but  there  was  held  to  have  arisen  an  implied 
tenancy,  the  government  having  occupied  the  premises  and  erected  a  fort 
thereon  with  the  consent  of  the  owner,  and  vouchers  for  the  pa3'ment  of 
several  years'  rent  having,  by  orders  of  the  Secretary  of  War,  been  sent  to 
the  treasury  for  settlement. 

An  unincorporated  society  or  club  may  take  a  lease.  Alexander  v.  ToUes- 
ton  Club,  110  111.  05.  And  a  lease  "  during  the  existence  of  said  club"  will 
continue  notwithstanding  it  is  afterwards  incorporated. 

The  park  commissioners  or  directors  of  a  public  park  may  take  a  lease. 
The  Queen  ;-.  Miller,  4  Russ.  &  Geld.  (N.  S.)  361. 

2  The  civil  powers  of  ecclesiastical  corporations  are  the  same  as  those  of 
secular  corporations  in  America.  Whether  they  can  take  leases  depends 
upon  the  extent  of  their  express  or  implied  powers  as  determined  by  their 
charters  and  the  objects  of  their  organization.     See  ante,  eh.  1,  sec.  12,  notes. 

113 


*69  TO    WHOM   TERMS    GRANTED.  [Ch.  II.  S.  3. 

lice,  or  any  curacy  or  lectureship,  or  who  shall  be  licensed 
or  otherwise  allowed  to  perform  the  duties  of  any  ecclesias- 
tical office  whatever,  to  take  to  farm  for  occupation  by  him- 
self, by  lease,  grant,  words,  or  otherwise,  for  term  of  life,  or 
of  years,  or  at  will,  any  lands,  exceeding  eighty  acres  in  the 
whole,  for  the  purpose  of  occupying,  or  using,  or  cultivating 
the  same,  without  the  permission  in  writing  of  the  bishop  of 
the  diocese,  specially  given  for  that  purpose  under  his  hand ; 
and  every  such  permission  to  any  spiritual  person  to  take 
farm,  for  the  purpose  aforesaid,  any  greater  quantity  of  land 
than  eighty  acres  shall  specify  the  number  of  years,  not 
exceeding  seven,  for  which  such  permission  is  given :  and 
every  such  spiritual  person,  who  shall,  without  such  permis- 
sion, so  take  to  faini  any  greater  quantity  of  land  than  eighty 
acres,  shall  forfeit  for  every  acre  of  land  above  eighty  acres, 
so  taken  to  farm,  the  sum  of  fort}^  shillings  for  each  3-ear  dur- 
ing or  in  which  he  shall  so  occupy,  use  or  cultivate  such  land, 
contrary  to  the  provisions  aforesaid."  By  sect.  124,  the  word 
"  benefice  "  is  explained  to  mean  benefices  with  cure  of  souls, 

and  no  others ;  and  to  comprehend  all  parishes,  per- 
[*69]     petual  curacies,  donatives,  endowed  public  *  chapels, 

parochial  chapelries  or  districts  belonging  or  reputed 
to  belong,  or  annexed  or  reputed  to  be  annexed,  to  any 
church  or  chapel. 

A  lease  made  contrary  to  the  provisions  is  not  void,  but 
voidable  merely  on  an  information  brought  for  holding  a 
quantity  of  land  above  eighty  acres. 


Sect.  3.  —  To  Trustees  for   Charitable  Uses} 

The  Mortmain  Acts.  —  Leases  of  land  in  England  or  Wales 

to  trustees  for  cliaritahle  uses  must  (like  other  conveyances) 

^  Whc'tlior  trustees  in  America  can  take  leases  depends  upon  tlie  extent  of 
their  exjjress  and  implied  powers. 

Tru.stees  under  continuinj^  or  permanent  trusts  necessarily  have  implied 
power  (unless  restrained  by  the  trust  instrument  or  by  statute)  to  take  leases, 
80  far  as  necessary,  for  tlie  purposes  of  the  trust.  Likewise,  trustees  under 
temi)orary  trusts  have  power  to  take  short  leases  or  leases  at  will,  if  neces- 
sary to  successfully  carry  out  the  objects  of  tlie  trust.  See  ante,  ch.  1,  sec. 
17,  note. 

114 


Cii.  II.  S.  3.]         TO   TRUSTEES   FOR   CHARITABLE   USES.  *70 

be  made  according  to  the  Mortmain  Acts  (a).  They  must 
be  by  deed,  sealed  and  delivered  in  the  presence  of  two  or 
more  credible  witnesses  (6),  twelve  calendar  months  at  least 
before  the  death  of  the  grantor,  and  inrolled  in  chancery 
within  six  calendar  months  next  after  the  execution  thereof, 
and  must  be  made  to  take  effect  in  possession  for  the  chari- 
table uses  intended  immediately  from  the  making  thereof, 
and  be  without  any  power  of  revocation,  reservation,  trust, 
condition,  limitation,  clause,  or  agreement  whatsoever  for 
the  benefit  of  the  grantor,  or  of  any  person  or  persons  claim- 
ing under  him,  other  than  and  except  such  as  are  specially 
permitted  by  the  above-mentioned  acts.  By  26  &  27  Vict.  c. 
106,  "  Every  deed  or  assurance  by  which  any  land  shall  have 
been  demised  for  any  term  of  years  for  any  charitable  use 
shall,  for  all  the  purposes  of  the  said  recited  acts,  be  deemed 
to  have  been  made  to  take  effect  for  the  charitable  use 
thereby  intended,  if  the  term  for  which  such  land  shall  have 
been  thereby  demised  was  thereby  made  to  commence  and 
take  effect  in  possession  at  any  time  within  one  year  from 
the  date  of  such  deed  or  assurance."  A  deed  which  is 
merely  colourable  as  to  the  consideration,  and  which  is 
framed  to  evade  the  provisions  of  the  Mortmain  Acts, 
is  fraudulent  and  void  as  against  the  grantor's  heir  (c).  A 
man  demised  to  his  sister  lands  for  twenty  years  at  a  pepper- 
corn rent.  Three  months  afterwards  he  gfranted  the  same 
lands  to  charitable  uses,  subject  to  the  lease.  Held  that 
such  grant  was  an  evasion  of  the  statute  and  void  (^d). 

The  Mortmain  Acts  do  not  extend  to  lands  in  Scotland  or 
Ireland,  nor  to  grants,  &c.,  to  the   Universities  of  Oxford 
or  Cambridge,  or  any  colleges  or'  houses  of  learning  therein, 
or  to  the  Colleges  of  Eton,  Winchester,  or  West- 
minster.    When  lands  are  already  in  *  mortmain,  a     [*70] 


(«)  9  Geo.  2,  c.  36 ;  9  Geo.  4,  c.  85  ;  (r)  Doe   d.   Williams   v.  Lloyd,   5 

24  &  25  Vict,  c.  9;  25  &  2G  Vict.  c.  Bin^.  N.  C.  74L 

17;  26  &  27  Viot.  c.  106;  27  Vict.  c.  (d)  Wickham  v.  Marquis  of  Bath, 

13;  29  &  30  Vict.  c.  57.  L.  R.,  1  Eq.  17;  35  Beav.  59;  35  L. 

(b)  Wiackmh  v.  Marquis  of  Bath,  J.,  Ch.  5. 
35  L.  J.,  Cii.  5;  L.  R.,  1  Eq.    17  ;  35 
Beav.  59. 

115 


*70  TO   WHOM   TEEMS   GRAFTED.  [Cii.  II.  S.  4. 

lease  thereof  to  charitable  uses  is  not  within  the  9  Geo.  2, 
c.  36  0'). 

Exemption  of  Art  Buildings,  &c.  —  By  31  &  32  Vict.  C.  44, 
intituled  ^^  An  Act  for  facilitating  the  acquisition  and  enjoy- 
ment of  sites  for  Buildings  for  Religious,  Educational,  Lit- 
erary, Scientific,  and  other  Charitable  purposes,"  leases,  &c., 
of  land  not  exceeding  two  acres  bond  fide  made  to  trustees 
of  a  society  for  any  of  the  above  purposes,  for  full  rent  or 
value,  are  exempt  from  the  provisions  of  the  Mortmain  Acts 
(9  Geo.  2,  c.  36,  and  24  &  25  Vict.  c.  9,  s.  2). 


Sect.  4, —  To  Infants.^ 

"When  void  or  voidable.  —  Leases  to  infants  are  not  abso- 
lutely void,  but  voidable  by  them  upon  attaining  their 
majority.  And  it  would  seem  that  an  infant  who  has  taken 
possession  under  a  lease  which  is  disadvantageous  to  him,  is 
liable  if  he  has  not  disclaimed  on  attaining  his  full  age  (/'). 
Even  during  infancy  he  may  be  liable  for  the  use  and  occu- 
pation of  necessary/  lodgings  or  apartments  suitable  to  his  state 
and  degree  (</).  Where  an  infant  rented  a  house,  and  exer- 
cised his  trade  as  a  barber  therein,  it  was  held  that  it  was 
properly  left  to  the  jury  to  decide  whether  it  Avas  as  a  neces- 
sary of  life,  or  a  mere  incident  to  his  trade  (7<).  In  the  lat- 
ter case,  as  an  infant  is  incapable  by  law  of  trading,  he  would 
not  be  liable ;  in  the  former  case  he  would  (i). 

Election  to  avoid  —  when  made.  —  The  election  to  avoid  a 
lease  must  be  made  by  the  infant  within  a  reasonable  time 
after  he  attains  his  full  age  (/)  ;  and  an  acquiescence  of 
four  months  after  majority  has  been  held  to  preclude  an 
infant  from  afterwards  disaffirming  a  lease  (/c).     An  acqui- 

(e)  Walker  v.  Tliclmrdson,  2  M.  &  (7)  Hands  v.  f>]ar\ey,  8  T.  M.  578. 

W.  H82;  Att.-Gon.   v.   CJlyn,   12  Sim.  (h)  Lowe  v.  Griffiths,  1  Scott,  458. 

84 ;  Ashton  v.  Jones,  28  P.eav.  4G0.  (0  See  Smith,  L.  &  T.  70. 

(/)  Bull.  N.  P.  177  ;  Ketsey's  case,  (  /)  See  North  Western  Hail.  Co.  v. 

Cro.  .Tac.  .320  ;    Baylis  v.   Dyneley,  .'J  McMieliael,  5  Ex.  128. 

M.  &.   S.  477;    Holmes    ;;.   BloKg,   8  (/!)  Holmes  c.  niofrg,  8  Taunt.  .%. 
Taunt.  .%. 

'  For  Aineriean  autlioritics  upon  valiility  of  infant's  contracts,  sec  ante, 
ch.  1,  sec.  I'J,  notes. 

116 


Ch.  II.  S.  5.]  LEASES   TO   MARRIED    WOMEN.  *71 

escence  for  so  long  a  period  would  be  evidence  from  which 
a  jury  might  infer  an  affirmance  of  the  lease. 

If  the  infant  lessee  elect  to  annul  a  lease  under  which  he  has 
occupied,  he  cannot  recover  the  premium  paid  for  it,  although 
subsequent  events  may  effect  a  complete  failure  of  the  ol)ject 
for  which  the  premium  was  paid  (/c).  In  such  a  case  there 
would  have  been  only  a  partial,  not  a  total  failure  of  consid- 
eration ;  if  the  failure  be  total  the  infant  can  recover  (?). 

Avoidance    for  misrepresentation  of   age.  —  If  a  lease  be  set 
aside  at  the  instance  of  the  lessor,  on  the  ground  that  the 
lessee  is  an  infant,  and  obtained  the  lease  on  the 
*  misrepresentation  that  he  was  of  full  age,  the  les-     [*71] 
sor  cannot  recover  for  use  and  occupation  (w). 

Infant  jointly  interested.  —  If  a  person  jointly  interested 
with  an  infant  in  a  lease  obtain  a  renewal  to  himself  only, 
and  the  lease  prove  beneficial,  he  is  held  to  have  acted  as 
trustee,  and  the  infant  may  claim  his  share  of  the  benefit ; 
but  if  it  do  not  prove  beneficial,  he  must  take  it  upon  him- 
self (w). 

Renewal  of  leases  to  infants.  —  By  virtue  of  1  Will.  4, 
c.  Q5,  s.  12,  leases  to  infants  may,  under  the  direction  of  the 
Chancery  Division  of  the  High  Court  (o),  be  surrendered 
and  renewed.  This  act  applies  equall}'',  whether  the  interest 
of  the  infant  be  legal  or  equitable  (^). 


Sect.  5. —  To  Married  Women} 

At  common  law,  a  married  woman  may  be  a  lessee,  her 
husband's  express  assent  to  the  lease  not  being  necessary,  as 

(/)  Corpe  V.  Overton,  10  Binj?.  252;  (i?)  Ex  parte  Grace,  1  B.  &  P.  376. 

and  see  Everett  v.  Wilkins,  29  L.  T.  (o)  Judicature  Act,  1873,  s.  34. 

840.  (/O  In  re  Griffiths,  W.  N.  for  April 

(/«)  Lempriere  v.  Lange,  L.  R.,  12  4th,  1884. 
Ch.  D.  675 ;  41  L.  T.  378;  27  W.  R.  879. 

^  For  American  authorities  upon  the  contracts  of  married  women,  both  at 
common  law  and  under  the  enabling  statutes,  see  ante,  ch.  1,  sec.  22,  notes. 
At  common  law  a  married  woman  was  absolutely  incapable  of  contracting, 
and,  of  course,  could  neither  give  nor  take  leases.  This  disability  largely 
remained  until  within  a  very  few  j^ears.  Now,  by  virtue  of  various  enabling 
statutes,  she  has  power  under  certain  restrictions  to  make  contracts  as  if  sole. 

117 


*71  TO    WHOM   TERMS    GRANTED.  [Ch.  II.  S.  5. 

the  estate  vests  until  he  signifies  his  dissent  (</).^  She  may, 
however,  avoid  it  after  his  death  (r).  A  married  woman 
living  separate  from  her  husband  may,  at  common  law,  by 
taking  a  lease,  bind  her  separate  estate  for  payment  of  the 
rent  and  performance  of  the  covenants  (s),  and  it  is  expressly 
provided  by  the  Married  Women's  Property  Act,  1882,  45 
«fc  46  Vict.  c.  75,  sub-s.  3  and  4,  not  only  that  "  every  con- 
tract entered  into  by  a  married  woman  shall  be  deemed  to  be 
a  contract  entered  into  by  her  with  respect  to  and  to  bind 
her  separate  estate,  unless  the  contrary  be  shown : "  but  also 
that  "  every  contract  entered  into  by  a  married  woman  with 
respect  to  and  to  bind  her  separate  property  shall  bind  not 
only  the  separate  property  which  she  is  possessed  of  or 
entitled  to  at  the  date  of  the  contract,  but  also  all  separate 
property  which  she  may  thereafter  acquire." 

Lease's  to  husband  and  wife.  —  If  a  lease  be  made  to  a  hus- 
l>and  and  wife,  the  wife  cannot  disagree  to  it  during  the  life 
of  her  husband,  and,  if  slie  acquiesce  after  his  death,  she  will 
be  liable  for  all  arrears  of  rent  which  accrued  during  his 
lifetime,  and  may  be  charged  with  waste  during  the  cover- 
ture (^).  But  it  is  said,  however,  that  if  there  be  any  special 
covenants  inserted  in  the  lease,  she  is  not  bound  by  them 
after  the  death  of  her  husband,  although  she  continues 
tenant  by  force  of  the  demise  (?/ ). 

Renewal  of  leases.  —  By  1  Will.  4,  c.  65,  s.  12,  leases  to 
married  women 'may,  under  the  directions  of  the  Chancery 
Division  of  the  High  Court  (o),  be  surrendered  and  renewed. 

(7)  Swainc  v.  IIoliujui,  Hob.   204;  (0  2  Inst.  303;   2  KoU.  827,  1,  10, 

Co.  Lit.  3  a.  2');  Com.  Dig.  tit.   Baron  and  Feme 

(r)  Co.  Lit.  3  a.  (S.  2). 

(s)  Gaston  r.  Frankum,  2  De  G.  &  («)  1  Roll.  Abr.  349,  pi.  2  ;  Brownl. 

Sm.  561;  Fry,  s.  157.  31  ;  Dyer,  13  b. 

'I'he  common  law  still  prevails  except  so  far  as  cxiiressly  clianged.  Tlie 
extent  of  tliese  cliantjes  can  be  accurately  asccrtaiiii'd  only  liy  consulting  the 
statutes  of  the  several  states. 

'  A  lease  to  a  wife  to  wliich  lier  husband  does  not  dissent  being  her 
cbattel  real,  belonged  at  common  law  to  lier  husband,  and  in  ejectment 
brought  against  him  by  the  wifc'.s  lessor,  liusband  is  estopped  to  deny  lessor's 
title.     Lucas  i-.  IJroolcs,  lb  Wall.  4::(i.  4r)l. 

118 


Ch.  II.  S.  8.]       LEASES   TO   ALIENS   AND   DENIZENS.  *72 

*  Sect.  6.  —  To  Lunatics}  [*72] 

Liability  of.  —  Idiots  and  lunatics  may  take  leases  for  their 
benefit  (y).  Use  and  occupation  cannot  be  maintained  on  a 
written  agreement  entered  into  by  a  lunatic  to  take  a  liouse 
which  is  unnecessary,  if  the  lessor  was  aware  of  it,  and  took 
advantage  of  the  lunatic's  situation  (:r). 

Renewal  of  leases.  —  Committees  of  lunatics  may,  by  16  c^' 
17  Vict.  c.  70  (?/),  under  the  direction  of  the  Lord  Chan- 
cellor, surrender  leases  and  take  new  ones  for  the  benefit  of 
the  lunatic. 


Sect.  7.  —  To  Convicts. 


The  leaseholds  of  a  convict  come  under  the  operation  of 
the  act  33  &  34  Vict.  c.  23,  which  was  passed  in  1870  to 
abolish  forfeitures  for  treason  or  felony.  At  common  law 
the  leaseholds  of  persons  attainted  of  treason  or  felony 
became  forfeited,  Math  their  other  property,  to  the  crown  (z). 
But  by  the  1st  section  of  the  Act  of  1870,  it  is  provided  that 
no  conviction  for  treason  or  felony,  or  felo  de  se,  shall  cause 
any  forfeiture  or  escheat  («). 


Sect.  8.  —  To  Aliens  ^  and  Denizens.^ 

Alien  Act,  1870.  —  The  rights   of  aliens  to  hold 'property 
have  been  regulated  by  a  series  of  statutes  culminating  in 

(v)  Co.  Lit.  2  b.  (2)  Co.  Lit.  2  b. 

(.t)  Dane  v.  Viscountess  Kirkwall,  (o)  See  further  provisions  of   this 

8  C.  &  P.  679.  act,  ante,  Chap.  I.,  Sect.  25,  p.  47. 
((/)  Ante,  Ch.  I.,  Sect.  23. 

^  For  American  authorities  upon   contracts   of    insane    persons,  &c.,  and 
their  conuiuttues.  see  ante,  ch.  1,  sec.  23,  notes. 

"  Alien's  rights  at  common  law  and  under  enabling  statutes.  —  At 
common  law  an  alien  was  absolutely  incapable  of  taking  real  property  by 
descent.  Jackson  v.  Luun,  3  Johns.  Cas.  (N.  Y.)  100,  120  (per  Kent,  J.) 
Hunt  V.  Warnickes'  Heirs,  Hardin  (Ky.)  61 ;  Fox  v.  Southack,  12  Mass 
143,  148  (per  Jackson,  J.);  People  r.  Conklin,  2  Hill  (N.  Y.)  67;  Doe  v 
Ilorniblea,  2  Hayw.  (N.  C.)  36;  2  Kent's  Com.  (13th  ed.)  sec.  53,  54 
Neither  could  one  alien  inherit  from  another.  Wilbur  v.  Tobey,  16  Pick.  177 
Nor  could  any  one  inherit  by   representation   tlirough   an   alien.     Levy    v 

119 


*72  TO   WHOM   TERMS    GRANTED.  [Ch.  II.  S.  8. 

the  Naturalization  Act,  1870  (33  Vict.  c.  14),  which  repealed 
ten  previous  statutes. 

Of  the  repealed  acts,  it  will  be  sufficient  to  refer  shortly 
to  two.  By  32  Hen.  8,  c.  16,  s.  13  (6),  leases  of  dwelUng- 
Jiouses  or  shops  granted  to  any  stranger  artificer  were  made 
void.  That  act  did  not  extend  to  assignments  to  aliens  of 
leases  previously  granted  to  natural-born  subjects  (c).     By 


(6)  Repealed,  Stat.  Law  Rev.  Act.  (c)  Wootten  v.  Steffenoni,  12  M.  & 

W.  129. 

M'Cartee,  G  Pet.  102;  Jackson  v.  Green,  7  Wend.  (N.  Y.)  333;  Jackson  v. 
Fitz  Simmons,  10  Wend.  (N.  Y.)  9.  In  all  such  cases,  if  there  were  no  other 
lieirs,  the  land  escheated  to  the  estate  at  once  and  without  office  found. 

An  alien  wife  of  a  citizen  was  not  entitled  to  dower,  Kelly  v.  Harrison,  3 
Johns.  Cas.  (N.  Y.)  470;  nor  an  alien  husband  to  tenancy  by  the  curtesy  in 
lands  here,  Foss  v.  Crisp,  20  Pick.  121. 

Aliens  might  take  by  devise.     Craig  v.  Leslie,  3  Wheat.  568,  589  (except 

in  Xortli  Carolina,  Trustees  of  University  v.  ,  2  Hayw.   (N.  C.)  104 ; 

Gilniour  v.  Admrs.  of  Kay,  &c.,  2  lb.  108).  And  one  alien  might  devise  to 
a  citizen  or  another  alien.  Fairfa.\'s  Devisee  i'.  Hunter's  Lessee,  7  Cranch, 
603,  6.30  (per  Johnson,  J.). 

An  alien  might  take  realty  by  purchase.  Governeur's  Heirs  v.  Robertson, 
11  Wiieat.  332;  Wilbur  v.  Tobey,  16  Pick.  177,  179  (per  Shaw,  C.  J.)  ;  Jack- 
son V.  Beach,  1  Johns.  Cas.  (N.  Y.)  399;  Jackson  v.  Lunn,  3  Id.  109,  112,  120 
(per  Radcliff  &  Kent,  JJ.)  ;  Waugh  v.  Riley,  8  Met.  290;  Cross  r.  De  Valle, 
1  Wall.  1,  13  (per  Grier,  J.);  Taylor  v.  Benham,  5  How.  233,  270;  2  Kent's 
Cora.  (13th  ed.)  sec.  54.  In  all  cases,  however,  whether  his  title  was 
acquired  by  devise  or  purchase,  the  aliens  might  be  divested  of  it  by  an 
inquest  of  office.  If  he  should  die  without  devising  it  or  otherwise  dispos- 
ing of  the  realty,  it  would  escheat  to  the  estate,  since  an  alien  could  not  trans- 
mit by  descent.     2  Kent's  Com.  sec.  54. 

An  alien  might  be  a  trustee,  but  the  trust  would  be  voidable  by  tlie  state 
(2  Kent's  Com.  sec.  62);  Hubbard  v.  Goodwin,  3  Leigli  (Va.)  492,  511,  512. 
And  equity  would  not  raise  a  resulting  trust  in  favor  of  an  alien  (per 
Tucker,  J.,  supra,  pp.  511,  512).  Tiiey  are  capable  of  acquiring,  holding,  and 
transmitting  personal  property  in  like  manner  as  our  own  citizens.  2  Kent's 
Com.  sec.  62. 

Alien's  rights  under  enabling  statutes.  —  Disabilities  as  to  realty  are 
all  removed  in  Louisiana,  Pennsylvania,  New  Jersey,  Maryland,  Micliigan, 
Illinois,  ■  Massachusetts,  Connecticut,  Iowa,  Wisconsin,  Ohio,  Maine,  and 
Florida;  and  in  Missouri,  Mississippi,  California,  and  New  Mampsliire  from 
resident  aliens;  and  in  Kentucky  after  they  liave  resided  in  tiie  state  two 
years,  and  in  North  Carolina  and  Vermont  upon  complying  witli  certain  con- 
stitutional provisions.     1  Taylor's  Land.  &  Tenant  (8tli  ed.)  sec.  143-145. 

^Denizens.  —  "Tlie  American  editor  of  Wharton's  Diet,  says  tliat  deni- 
zens are  not  known  in  the  United  States,  and  cites  Walker's  Am.  Law;  but 
Bouvier  says  tiiis  condition  has  been  created  by  statute  in  South  Carolina." 
Abl)()tt's  Law.  Diet. 

"  In  Soutli  Carolina,  and  periuips  in  otiier  states,  tiiis  civil  condition  is 
well  known  to  the  law,  iiaving  been  created  by  statute."     Bouv.  Law  Diet. 

120 


Cii.  II.  S.  9.]       LEASES   TO    ALIENS    AND   DENIZENS.  *73 

7  &  8  Vict.  c.  6(j,  s.  4,  aliens  were  enabled  to  liold  personal 
property  of  all  kinds,  except  cJuifteh  real  [i.e.,  terms  of  years], 
as  effectually  as  natural-born  sul)jects ;  and  by  sect.  5  of  the 
same  act  "  every  alien  being  the  subject  of  a  friendly  state  " 
was  enabled  to  hold  lands  or  houses  for  the  purpose  of  resi- 
dence or  business  for  any  term  of  years  not  exceeding 
twenty-one  years. 

Alien  may  take  lease.  —  But  all  statutory  restric- 
tions appear  to  be  done  away  by  the  Alien  *Act,  [*73] 
1870  (33  Vict.  c.  14),  which  enacts  (sect.  2),  that 
"real  and  personal  property  of  every  description  may  be 
taken,  acquired,  held  and  disposed  of  by  an  alien  in  the  same 
manner  in  all  respects  as  by  a  natural-born  British  subject ; " 
provided  that  this  section  shall  not  confer  any  right  on  an 
alien  to  hold  real  property  situate  out  of  the  United  King- 
dom, or  to  "  any  right  or  privilege  as  a  British  subject, 
except  such  rights  and  privileges  in  respect  of  property  as 
are  hereby  expressly  given  to  him,"  and  "  that  this  section 
shall  not  affect  any  estate  or  interest  in  real  or  personal 
property  to  which  any  person  has  or  may  become  entitled, 
either  mediately  or  immediately,  in  possession  or  expectancy, 
in  pursuance  of  any  disposition  made  before  the  passing  of 
this  act,  or  in  pursuance  of  any  devolution  by  law  on  the 
death  of  any  person  dying  before  the  passing  of  this  act." 

Alien  enemies.  —  Alien  enemies  cannot  hold  leases  for 
the  purpose  of  habitation  or  commerce,  or  for  an}^  other  pur- 
pose ((?),  and  this  restriction  does  not  appear  to  be  done  away 
by  the  Act  of  1870. 

Denizens.  —  A  denizen,  i.e.,  an  alien  born,  who  has  obtained 
ex  donatione  regis  letters-patent  to  make  him  an  English 
subject  (e),  may  be  a  lessee,  like  a  natural-born  subject  (/), 
independently  of  the  Alien  Acts. 


Sect.  9. —  To  Corporations. 

Leases    to    corporations.  —  A    corporation    aggregate    may 
take  any  chattel,  as  a  lease,  &c.,  in  its  corporate  capacity, 

(d)  See  Alcinous  v.  Negren,  4  E.  &  (f)  1  Blac.  Com.  374;  Bendl.  10, 
B.  217.                                                            pi.  40;  32  Hen.  8,  c.  16,  s.  13. 

(e)  Co.  Lit.  129  a ;  Cole  Ejec.  570. 

121 


*73  TO    WHOM   TERMS    GRANTED.  [Cu.  II.  S.  0. 

which  shall  go  in  succession,  because  it  is  always  in  be- 
ing (^).^  But  regularly  no  chattel  shall  go  in  succession  in 
case  of  a  sole  corporation ;  therefore,  if  a  lease  for  years  be 
made  to  a  bishop  and  his  successors,  and  the  bishop  die,  it 
shall  not  go  to  his  successors,  but  to  his  executors  (Ji) ;  by 
custom,  however,  it  may,  as  in  the  instance  of  the  Chamber- 
lain of  London  (T). 

Leases  to  members.  —  One  individual  of  a  corporation  aggre- 

(.7)  Bac.  Abr.  tit.  Corporations  (E.  {h)  Co.  Lit.  46  b. 

4).'  (i)  2  Bac.  Abr.  14. 

'Leases  to  corporations.  —  Corporations  may  take  leases,  not  ultra 
vires,  of  either  realty  or  personalty.  Peterborough  R.  R.  Co.  v.  Nashua  & 
L.  R.  R.  Co.,  59  N.  H.  385;  Carroll  v.  St.  John's  Society,  125  Mass.  565; 
Crawford  v.  Longstreet,  43  N.  J.  L.  325,  329,  330,  381. 

Under  circumstances  if  they  take  an  ultra  vires  lease,  and  occupy  under  it, 
they  must  pay  rent.  Camden  &  At.  R.  R.  Co.  v.  Mays  Landing,  &c.,  R.  R. 
Co.,  48  N.  J.  L.  530.  Likewise  it  has  been  held  that  if  the  receiver  of  a 
lessee  road,  which  has  taken  an  ultra  vires  lease,  continue  to  occupy,  he  must 
pay  rent.     Woodruff  i'.  Erie  Ry.  Co.,  93  N.  Y.  609. 

And  a  corporation  must  pay  rent  under  a  lease  in  writing  (for  five  years) 
taken  by  committee  duly  authorized  by  vote  in  their  own  names.  Carroll  v. 
St.  Johns  Society,  125  Mass.  565. 

A  corporation  cannot  ordinarily  take  a  lease  of  the  road  and  franchises  of 
another  company  without  special  statutory  authority.  Penn.  R.  R.  Co.  i;.  St. 
Louis,  Alton,  &c.,  R.  R.,  118  U.  S.  290;  Board,  &c.  v.  Lafayette,  &c.,  R.  R.  Co., 
50  Ind.  85,  110;  Winch  v.  Birk.  Lan.  &  Chcs.  June.  R.  R.  Co.,  13  Eng.  Law  & 
Eq.  506;  Beman  v.  Rufford,  6  Id.  106;  Gt.  North.  Ry.  Co.  v.  East.  Count. 
R.  Co.,  12  Id.  224;  East  Anglian  Ry.  Co.  v.  Eastern  Counties  Ry.  Co.,  11 
C.  B.  775;  Eastern  County  Ry.  Co.  i-.'Hawkcs,  5  H.  L.  Cas.  331  ;  T.  &  B.  R. 
R.  Co.  V.  B.,  H.  T.  &  W.  Ry.  Co.,  86  N.  Y.  107,  117  {pvr  Dunforth,  J.)  ;  Wood 
r.  B.  &  B.  R.  R.  Co.,  8  Piiila.  94. 

It  may,  however,  if  it  have  such  authority.  Black  v.  Delaware  &  Karitan 
Canal  Co.,  22  N.  J.  Eq.  130;  Phila.  &  Erie  R.  R.  Co.  v.  Catawissa  R.  R.  Co., 
53  Pa.  St.  20;  Durfee  v.  Old  Colony,  &c.,  R.  R.  Co.,  5  Allen  (Mass.)  230; 
Railway  Co.  v.  Vance,  96  U.  S.  450.  And  the  authority  may  be  granted  by  a 
general  statute.  Fisher  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  46  N.  Y.  (>\\ ;  People  v. 
Albany  &  Vt.  R.  R.  Co.,  77  N.  Y.  232. 

A  foreign  corporation  may  take  lease  of  domestic  property  for  an  office 
Jiiid  must  jiay  the  rent.     Steamboat  Co.  v.  McCutcheon,  13  Pa.  St.  13. 

"A  statutory  corporation,  created  by  act  of  Parliament  for  a  jjarticular 
purpose,  is  limited,  as  to  all  its  powers,  by  the  purposes  of  its  incorporation 
as  defined  in  that  act."  Lord  Selborne  in  Ashbury  Ry.  Carriage  &  Iron  Co. 
V.  Riche,  L.  R.,  7  II.  L.  653. 

And  persons  dealing  witli  (corporations  are  boun<l  at  their  peril  to  take 
notice  of  the  legal  limits  of  those  powers,  per  Gray,  C.  J.,  in  Davis  i'.  Old 
Colony  R.  R.,  131  Mass.  258,  260. 

See  further  as  to  the  n\etiiods  of  acting  and  doctrine  of  ultra  vires,  ante, 
ch.  1,  sec.  12,  notes. 

122 


Ch.  II.  S.  10.]  LEASES   TO    PARISH    OFFICERS.  *74 

gate  cannot  take  a  lease  from  the  corporation  (/c).  A  corpo- 
ration sole  cannot  make  a  lease  to  himself  in  his  natural 
capacity  (^)  ;  but  there  is  no  objection  to  such  a  lease  being 
made  in  trust  for  the  grantor.  One  member  of  a  corporation 
aggregate  cannot  make  a  lease  of  corporate  lands  to  another 
member ;  thus,  a  dean  cannot  make  a  lease  to  his  chapter  (/c), 
nor  vice  versa.  But  a  lease  may  be  made  by  the  dean  and 
chapter  to  one  of  the  prebendaries,  as  a  prebendary  is  not  an 
integral  part  of  the  body  politic  (A;).  Where  land 
was  let  to  the  churchwardens  and  *  overseers  of  the  [*74] 
poor,  jointly  with  the  surveyors  of  the  highways,  and 
their  successors,  it  was  held  that  it  was  not  within  59  Geo.  3, 
c.  12,  s.  12,  though  let  at  a  vestry  meeting  and  for  the  pur- 
poses of  the  poor ;  and  that  therefore  the  parties  were  indi- 
vidually liable  (Z). 

Canal  companies.  —  By  21  &  22  Vict.  c.  75,  s.  3,  made  per- 
petual by  23  &  24  Vict.  c.  41,  canal  companies  being  also 
railway  companies,  may  not  accept  a  lease  of  a  canal  or  rail- 
way, except  under  the  authority  of  a  special  act. 


Sect.  10.  —  To  Parish  Officers. 

Leases  for  workhouses.  —  The  9  Geo.  4,  c.  7,  s.  4,  and  59 
Geo.  3,  c.  12,  ss.  8,  9,  authorize  parishes  to  purchase  or  hire 
houses  for  the  purposes  of  lodging  the  poor,  and  to  build 
workhouses  thereon :  and  to  resell  what  may  be  no  longer 

(k)  Salter   i;.   Grosvenor,    8    Mod.  (/)  Utliwatt  v.  Elkins,  13  M.  &  W. 

;50;J.  772. 

Leases  to  members.  —  Corporations  may  (in  America)  make  valid 
contracts  with  their  members  tlie  same  as  witli  strangers.  Angel  &  Ames  on 
(Corporations  (lltli  ed.)  sec.  2o3,  citing  Worcester  Turnpike  v.  Willard,  5 
Mass.  85  {per  Parsons,  C.  J.)  ;  Gilmore  v.  Pope,  5  Id.  491 ;  Berk's  Turnpike 
Co.  V.  Myers,  0  S.  &  R.  (Pa.)  12;  Gordon  v.  Preston,  1  Watts  (Pa.)  .385; 
Central  Railroad  r.  Clagliorn,  1  Speers  Eq.  (S.  C.)  545;  Ely  v.  Spraguc,  1 
Clarke  Ch.  (N.  Y.)  351. 

The  United  States  Supreme  Court  held  in  Bank  of  Augusta  v.  Earle,  13 
I'et.  519,  587,  thnt  a  corporation  was  an  entirety  and  (in  the  language  of 
Taney,  C  J.)  its  contracts  were  not  contracts  "of  the  individual  members," 
but  "  of  the  artificial  being  created  by  the  charter."  Upon  this  broad  princi- 
ple a  lease  by  a  corporation  to  one  of  its  members  stands  upon  the  same 
footing  as  a  lease  to  a  stranger. 

123 


*75  TO    WHOM    TERMS    GRANTED.  [Ch.  II.  S.  10. 

wanted.  Such  assurances,  if  made  for  value,  are  not  chari- 
table, nor  affected  by  the  Statutes  of  iNIortmain  (»«)• 

Guardians  of  unions  ma}',  by  order  of  the  Local  Govern- 
ment Board  and  with  consent  of  ratepayers,  hire  buildings  for 
union  workhouses,  &c.,  pursuant  to  4  &  5  Will.  4,  c.  76,  s.  23. 

Temporary  hirings.  —  By  30  &  31  Vict.  c.  106,  s.  13,  "guar- 
dians may,  with  the  approval  of  the  Poor  Law  Board,  hire  or 
take  on  lease,  temporaril}',  or  for  a  term  of  years  not  exceed- 
ing five,  any  land  or  buildings  for  the  purjDose  of  the  relief 
or  employment  of  the  poor  and  the  use  of  the  guardians  or 
their  officers,  without  smy  order  of  the  said  board  under  seal." 

Not  more  than  twenty  acres. —  By  59  Geo.  3,  C.  12,  s.  12, 
churchwardens  and  overseers  may,  with  the  consent  of  the 
vestry,  purchase,  or  hire  or  take  on  lease  for  and  on  account 
of  the  parish,  any  suitable  j)ortion  or  portions  of  land  within 
or  near  to  tlie  parish  not  exceeding  twenty  acres  in  the 
whole,  and  employ  paupers  to  cultivate  the  same  (w).  By 
sect.  17,  all  such  land  is  to  be  conveyed,  demised  and  assured 
to  them  and  their  successors,  and  they  are  to  take  and  hold 
the  same  "  in  the  nature  of  a  body  corporate  for  and  on  behalf 
of  the  parish."  Any  such  assurance  should  be  made  to  them 
"and  their  successors,"  not  to  them,  their  heirs  and  as- 
signs (m).  Where  land  was  let  to  the  churchwardens  and 
overseers  of  the  poor,  jointly  with  the  surveyors  of  the  high- 
wa3^s,  and  their  successors,  it  was  held  that  it  was  not  a  case 
within  the  above  act  though  let  at  a  vestry  meeting  and  for 
the  purposes  of  the  poor,  and  that  therefore  the  ])arties  were 
individually  liable  (<?).  A  demise  to  churchwardens  and 
overseers  in  their  name  of  office  would  be  good,  and 
[*7o]  no  *  acceptance  thereof  under  any  common  seal 
need  be  alleged  in  pleading  (jo).  They  are  not  ex- 
actly a  corporation,  but  only  a  quasi  corporate  body  of  a 
peculiar  kind  (*/). 

Lease  to  overseers.  —  By  24  &  25  Vict.  c.  125,  "  the  over- 

()ft)  Rurnaby  r.  Harsby,  1  II.  &  N.  (/))  Smith  v.  Adkin.«,  8  M.  &  W. 

32fj ;  28  L.  J.,  Kx.  .'JiiG.  302  ;  1  Dowl.,  N.  S.  120. 

(n)  As   to   letting   sucli    land,   see  (7)  Gouldsworth  v.  Knight,  11  M. 

ante,  Chap.  I.,  Sect.  Ifl,  \^.  .'51.  &  W.  337. 

(0)  Uthwatt  V.  Elkins,  13  M.  &  W. 
772. 

124 


Cii.  II.  S.  11.]       TRUSTEES   OF   FRIENDLY   SOCIETIES.  •      *75 

seers  of  any  parish  in  Eng'land,  the  population  whereof  shall 
exceed  4,000  persons  according  to  the  census  for  the  time 
being,  with  the  consent  of  the  vestry,  called  after  due  notice, 
and  with  the  consent  of  the  Poor  Law  Board,  signified  by 
an  order  under  their  seal,  may  hire  any  room,  or  purchase  or 
take  upon  lease  or  exchange  any  land  or  building,  or  sell 
land  belonging  to  such  parish,  and  invest  the  proceeds  of 
such  sale  in  the  pitrchase  of  other  land  and  building,  or  erect 
a  suitable  building  on  any  land  acquired  as  aforesaid,  for  the 
purpose  of  an  office  for  the  transaction  of  the  business  of  the 
parish"  (?'). 

Sect.  11.  —  To   Trustees  of  Friendly  Societies. 

Leases  under  Friendly  Societies  Act.  —  By  the  Friendly 
Societies  Act,  1875  (38  &  39  Vict.  c.  60,  s.  16),  "a  society" 
[registered  under  that  act,  see  sect.  8],  "or  any  branch  of  a 
societ}^,  may,  if  the  rules  so  provide,  hold,  purchase  or  take 
on  lease  in  the  names  of  the  trustees  for  the  time  being  of 
such  society  or  branch,  in  every  county  where  it  has  an 
office,  any  land,  and  may  sell,  exchange,  mortgage,  lease  or 
Imild  upon  the  same  (with  power  to  alter  and  pull  down 
buildings  and  again  rebuild) ;  and  no  purchaser,  assignee, 
mortgagee  or  tenant  shall  be  bound  to  inquire  as  to  the 
authority  for  any  sale,  exchange,  mortgage  or  lease  by  the 
trustees ;  and  the  receipt  of  the  trustees  shall  be  a  discharge 
for  all  monej^s  arising  from  or  in  connection  with  such  sale, 
exchange,  mortgage,  or  lease ;  and  for  the  purpose  of  this 
section  no  branch  of  a  registered  society  need  be  separately 
registered. 

Not  more  than  one  acre.  —  Provided  that  nothing  herein 
contained  shall  authorize  any  benevolent  society  "  [/.e.,  a 
society  for  any  benevolent  or  charitable  purpose,  see  sect.  8] 
"to  hold  land  exceeding  one  acre  in  extent  at  any  one  time." 
This  enactment  is  considerably  wider  than  the  corresponding 
sect.  63  of  the  repealed  act  of  1855  (18  &  19  Vict.  c.  63), 
which  allowed  land  not  exceedinor  one  acre  to  be  held  for 
the  purpose   of   building  only,  the  restriction    of   quantity 

(?)  The  Act  contains  other  clauses  for  carrying  the  above  into  effect. 

125 


*76        •  TO    WHOM   TERMS    GRANTED.  [Ch.  II.  S.  13. 

being   general,   and   not    confined   to   benevolent    societies. 
The  act  of  1875  is  a  consolidating  one  (s). 


[*76]     *  Sect.  12.  —  To  Trustees  of  Public  Baths  and  Wash- 
houses. 

By  9  &  10  Vict.  c.  74,  intituled  "  An  Act  to  encourage 
the  Establishment  of  Public  Baths  and  Wash-houses,"  after 
providing  in  what  manner  the  act  may  be  adopted  by  munici- 
pal corporations,  or  (with  the  approval  of  one  of  lier  Majes- 
ty's principal  secretaries  of  state),  by  any  parish  in  England 
not  within  any  such  incorporated  borough,  and  for  the 
appointment  of  commissioners  for  carrying  that  act  into  exe- 
cution in  any  such  parish  ;  sect.  27  enacts,  "  that  the  council 
of  any  such  borough,  and  the  commissioners,  with  the  ap- 
proval of  the  vestry  of  any  such  parish,  may,  if  they  shall 
think  fit,  contract  for  the  purchase  or  lease  of  any  baths  and 
wash-houses  already  or  hereafter  to  be  built  and  provided  in 
any  such  borough  or  parish,  and  appropriate  the  same  to  the 
purposes  of  this  act,  with  such  additions  or  alterations  as 
they  shall  respectively  deem  necessary :  "  and  the  trustees 
of  any  such  public  baths  and  wash-houses,  with  such  consent 
as  therein  mentioned,  are  authorized  to  sell  and  lease  the 
same  to  the  said  council  or  commissioners  (i). 

When  a  municipal  corporation  provides  baths  and  wash- 
houses  under  the  provisions  of  this  act,  the  property  becomes 
vested  in  the  body  corporate  with  all  incidental  liabilities, 
and  not  in  the  council  (u). 


Sect.  13. —  Of  Land  for  Free  Public  Libraries^ 
Museums,   ^c. 

Lease  to  town  council.  —  15y  "  The  Public  Libraries  Act, 
1855  "  (a:)  (18  &  19  Vict.  c.  70,  s.  18),  "  the  council  of  any 

(s)  See  Duvi.'i  on  Friendly  Societies,  (u)  Cowley  v.  Mayor,  &c.,  of  Sun- 

A.D.  187(5.  (krland,  0  II.  &  N.  Gfif). 

(0  Sec  also  10  &  11  Vict.  c.  31,  ss.  (.»)  Aniended  by  34  &  Sf)  Vict.  c. 

130-142.  71,  the  Public  Libraries  Act,  1871. 

126 


Ch.  II.  S.  14.]     PvATEPAYERS    FOR   TUBLIC   IMPROVEMENTS.      *77 

borough  and  the  board  of  any  district  respectively  may  from 
time  to  time,  with  the  approval  of  her  Majesty's  treasury," 
for  the  purposes  of  that  act,  "  rent  any  lands  or  any  suitable 
hidldings ;  "  and  the  council  and  board  and  commissioners 
respectively  may,  upon  any  lands  so  rented,  "erect  any 
building  suitable  for  public  libraries  or  museums  or  both,  or 
for  schools  for  science  or  art,  and  may  apply,  take  down, 
alter  and  extend  any  buildings  for  such  purposes,  and  re- 
build, repair  and  improve  the  same  respectively,  and  fit  up, 
furnish  and  supply  the  same  respectively  with  all  requisite 
furniture,  fittings  and  conveniences." 


*Sect.  14. —  To  Rate:payers  for  Public  Improvements.  [*77] 

Lease  to  ratepayers.  —  By  23  &  24  Vict.  c.  30,  intituled  "  An 
Act  to  enable  a  Majority  of  Two-Thirds  of  the  Ratepayers  of 
any  Parish  or  District,  duly  assembled,  to  rate  their  District  in 
aid  of  Public  Improvements  for  general  Benefit  within  their 
District"  (sect.  1),  ••'  it  shall  be  lawful  for  the  ratepayers  of  any 
parish  maintaining  its  own  poor,  the  population  of  which,  ac- 
cording to  the  last  account  from  time  to  time  taken  thereof  by 
the  authority  or  parliament,  exceeds  five  hundred  persons,  to 
purchase  or  lease  lands^  and  to  accept  gifts  and  grants  of  land, 
for  the  purpose  of  forming  any  public  ivalk^  exercise  or  play- 
ground, and  to  levy  rates  for  maintaining  the  same,  and  for 
the  removal  of  any  nuisances,  or  obstruction  to  the  free  use 
and  enjoyment  thereof,  and  for  itnproviny  any  open  walk 
or  footpath,  or  placing  convenient  seats  or  shelters  from  rain, 
and  for  other  purposes  of  a  similar  nature."  By  sect.  2, 
"this  act  may  be  adopted  for  any  borough,  or  for  any  parish 
having  a  population  of  five  hundred  or  upwards  (according 
to  the  last  account  taken  by  authority  of  parliament),  in  the 
same  manner  as  the  act  of  the  9  &  10  Vict.  c.  74,  may  be 
adopted  in  such  borough  or  parish."  By  sect.  7,  any  rate 
under  the  act  may  not  exceed  sixpence  in  the  pound. 

To  inhabitants.  —  A  lease  cannot  generally  be  made  to  the 
inhabitants  of  a  parish  or  township,  because  they  cannot  take 

127 


*78  TO    WHOM   TEEMS   GRANTED.  [Ch.  II.  S.  16. 

as  such,  not  being  a  corporate  body  (^).  But  a  grant  from 
the  crown  to  the  inhabitants  of  a  parish,  would  in  effect  incor- 
porate them,  though  for  the  purpose  of  such  grant  only  (z). 


Sect.  15. —  To  Trustees  of  Renewable  Leaseholds. 

Renewal  of  leases  by  trustees.  —  By  23  &  24  Vict.  C.  145,  S.  8, 
"  it  shall  be  la'U'f ul  for  any  trustees  of  any  leaseholds  for  lives 
or  years  which  are  renewable  from  time  to  time,  either  under 
any  covenant  or  contract  or  by  custom  or  usual  practice,  if 
they  shall  in  their  discretion  think  fit ;  and  it  shall  be  the  duty 
of  such  trustees,  if  thereunto  required  by  any  person  having 
any  beneficial  interest,  present  or  future  or  contingent,  in  such 
leaseholds,  to  use  their  best  endeavours  to  obtain  from  time  to 
time  a  renewed  lease  of  the  same  hereditaments  on  the  accus- 
tomed and  reasonable  terms,  and  for  that  purpose  it  shall  be 
lawful  for  any  such  trustees  from  time  to  time  to  make 
[*78]  or  concur  in  making  such  surrender  of  *the  lease  for 
the  time  beinor  subsistinq;,  and  to  do  all  such  other 
acts  as  shall  be  requisite  in  that  behalf ;  but  this  section  is 
not  to  apply  to  any  case  ♦where  by  the  terms  of  the  settle- 
ment or  will  the  person  in  possession  for  his  life  or  other 
limited  interest  is  entitled  to  enjoy  the  same  without  any 
obligation  to  renew  the  lease  or  to  contribute  to  the  expense 
of  renewing  the  same."  By  sect.  9,  money  required  for 
renewal  of  leases,  &c.,  may  be  raised  by  mortgage. 

A  trustee,  whose  duty  it  was  to  renew  leaseholds  out  of 
the  rents,  applied  them  to  his  own  use  :  —  Held,  that  the 
tenant  for  Hfe,  and  not  those  in  remainder  must  bear  the 
loss  (a). 

Sect.  10.  —  To  Agents  and  Trustees. 

Leases  to  agents.  —  With  respect  to  agents  and  other  per- 
sons whose  duties  are  to  protect  their  principals  and  to  pre- 

(y)  Weekly    i'.    WiUlman,    1     Ld.  C.  P.  210.     Hut  sec  Vestry  of  Ber- 

Raym.  405,  407  ;  Abbot  i-.  Weekly,  1  niondsey  v.  Hrown,  14  W.  R.  213. 
Lev.    170;     Loekwood    v.    Wood    (in  (r)  WiHini,'aU'  r.  Maitland,  L.  R.,  3 

error),  6  Q.  B.  62  ;  Constable  i^.  Nich-  Eq.  103,  100  ;  3<5  L.  J.,  Ch.  fi4. 
Olson,  14  C.  B.,  N.  S.  230 ;   32   L.  J.,  (a)  Solley  i-.  Wood,  29  Beav.  482. 

128 


Ch.  II.  S.  16.]       LEASES   TO   AGENTS    AND   TRUSTEES.  *78 

vent  the  property  from  being  let  at  an  undervalue,  Courts  of 
Equity  view  with  considerable  jealousy  contracts  entered 
into  for  leases  to  them.  It  is  incumbent  on  a  person  in  the 
situation  of  an  agent  to  show  that  the  transaction  is  perfectly 
fair  and  reasonable,  and  that  a  just  consideration  has  been 
given  by  him  for  a  lease  obtained  fiom  his  principal  (/*). 
The  same  observation  also  aj)plies  to  persons  in  the  situation 
of  debtor  and  creditor,  solicitor  and  client,  and  mortgagor 
and  mortgagee  (c) 

Lease  to  trustee.  —  If  a  lease  be  made  to  a  trustee,  he  is 
personally  liable  for  the  rent  and  covenants  (J),  and  the  les- 
sor has  no  remedy  at  law  against  the  cestui  que  trust  in 
respect  thereof.  The  trustee,  however,  where  he  holds  lease- 
hold property  for  a  tenant  for  life  and  remaindermen,  has  a 
duty  to  the  remaindermen  to  keep  it  free  from  risk  of  forfeit- 
ure, and  is  entitled  to  have  the  rent  employed  in  so  keeping 
it  (g),  and  further,  except  in  case  of  personal  default,  would 
seem  to  have  a  right  to  be  indemnified  out  of  the  trust 
fund  (/). 

If  there  be  a  personal  default  on  the  part  of  the  trustee, 
he  would  seem  to  have  no  right  to  be  indemnified. 

A  lease  by  a  trustee  to  himself  seems  to  stand  on  the  same 
footing  as  a  sale  by  trustee  to  himself ;  ^.g.,  it  is  a  transaction 
of  the  greatest  nicety,  and  one  which  the  courts  will  watch 
with  the  greatest  jealousy  (^). 

(h)  Ld.  Kingsland  v.  Barncwell,  4  ing  Co..  5  De  G.,  M.  &  G.  629;  25  L. 

Bro.   P.    C.    154;    Ld.    Hardwicke    v.  J.,  Ch.  G;].3. 

Vernon,  4  Ves.  411;  Lady  Ormond  i\  (e)  Fowler,  Tn  re,  L.  R.  16  Ch.  D. 

Hutchinson,   16  Ves.  94;  Grosvenor  72:];  44  L.  T.  99 ;  29  W.  H.  891,  per 

V.  Sherratt,  28  Beav.  659 ;  post.  Chap.  Fry,  J. 

IX.,  Sect.  4.  (/)  Lewin   on   Trusts,   7th   ed.  p. 

(c)  Gubbins    v.   Creed,    2    Sch.    &  217. 

Lef.  214;    Webb   v.  Ilorke,  Id.  661;  (g)  See  Lewin  on  Trusts,  7th   ed. 

Fisher,  s.  873;  poxt,  Cli.  IX.,  Sect.  4.  pp.  4;}8-451  ;  ch'mg  Ex  parte  Hujrhes, 

(c?)  Walters  v.  Northern  Coal  Min-  6  Ves.  617  ;  Att.-Gen.  v.  Earl  of  Clar- 

endon,  17  Ves.  491. 

129 


[*79]  *  CHAPTER   III. 

OF   WHAT   TERMS  MAY   BE   GRANTED. 


8BCT.  PAGE 

1.  Corporeal     and     Incorporeal 

Hereditaments 79 

2.  Advowsons 79 

3.  Tithes  and  Tolls   .....  80 

4.  Commons  and  Estovers      .     .  81 


SECT.  PAGE 

5.  "Ways 82 

6.  Franchises 82 

7.  Annuities 83 

8.  Right  of  Sporting      ....  83 

9.  Chattels 83 


Sect.  1.  —  Corporeal  and  Incorporeal  Hereditaments. 

Leases  of  corporeal  hereditaments.  —  Leases  for  life,  or  for 
years,  or  from  year  to  year,  may  be  made  of  anythiiif^  cor- 
poreal or  incorporeal  which  lies  in  livery  or  grant  (a).^ 
Corporeal  hereditaments  consist  wholly  of  substantial  and 
permanent  objects,  as  land,  houses,  &c.,  and  were,  before 
the  8  &  Vict.  c.  106,  said  to  lie  in  livery ;  but,  by  sect.  2  of 
that  act,  "  all  corporeal  tenements  and  hereditaments  shall, 

(a)  Shep.  Touch.  2G8. 

^  Examples  of  leasable  property.  —  The  following  are  a  few  examples 
of  property,  corporeal  or  incorporeal,  subject  to  be  leased,  viz. :  — 

A  mill  with  water-power  macliinery  and  tools.  Dexter  r.  ^lanlcy,  4  Cush. 
14;  land  with  connected  easements,  incjluding  foot  path,  Alexander  r.  Tol- 
leston  Club,  110  111.  05  ;  a  water-power,  Blanchard  v.  Ames,  00  N.  H.  404  ;  a 
ferry,  Macdoneil  v.  I.  &  G.  N.  Ry.  Co.,  GO  Tex.  590;  Eraser  i;.  Drynan,  4 
Allen  (N.  B.)  74;  rigiit  to  collect  wliarfage,  Mayor  v.  Mabie,  13  N.  Y. 
151;  a  town  wharf,  Inlibts.  of  Hingliam  w  Sprague,  15  Pick.  102;  a  min- 
ing and  oil  privilege,  Duke  v.  Hague,  107  Pa.  St.  57 ;  the  exclusive  riglit 
to  cut  ice  from  a  pontl,  Ricliards  ?-.  Gauffret,  145  Mass.  480;  motive  power 
to  be  generated  by  steam  upon  adjoining  premises,  Sliarpe  v.  Cutlibert,  4 
Q.  B.  D.  (Queb.)  211;  a  seat  in  a  theatre,  22  Fed.  Rep.  380;  a  wagon, 
Fairbank  v.  Phiips,  22  I'ick.  535.  Railroad  and  francliises  may  be  demised 
under  special  statutory  authority.  See  ante,  cli.  1,  sec.  12,  notes,  and  ch.  2, 
sec.  9,  notes,  &c. 

A  lease  for  years  is  held  not  to  be  a  conveyance  of  real  estate.  Perkins 
V.  Morse,  78  Me.  17;  Tone  v.  Brace,  11  Paige  (N.  Y.)  5(50.  A  demise  of 
right  to  collect  wliarfage  for  one  year  is  not  a  conveyance  of  real  estate. 
Mayor  v.  Mabie,  13  N.  Y.  151. 

130 


Ch.  III.  S.  2.]  LEASES    OF    ADVOWSONS.  *80 

as  regards  the  conveyance  of  the  immediate  freehohl  thereof, 
be  deemed  to  lie  in  grant  as  well  as  in  livery." 

Definition.  —  An  incorporeal  hereditament  is  a  right  issuing 
out  of  a  thing  corporeal  (whether  real  or  personal),  or  con- 
cerning, or  annexed  to,  or  exercisable  within  the  same  (5). 
Incorporeal  hereditaments  are  principally  these  :  viz.^  advow- 
sons,  tithes,  and  tolls,  commons  and  estovers,  ways,  offices, 
franchises,  corrodies  and  pensions,  and  annuities  (c).  They 
are,  generally  speaking,  capable  of  being  demised ;  but  such 
demise,  even  for  less  than  three  years,  must  be  by  deed,  for 
they  lie  in  grant  and  not  in  livery  ((:?).  But  a  right  of  way 
appurtenant  to  land  will  pass  by  a  parol  demise  of  the 
land  (e),  and  so  will  a  right  to  dig  turf,  or  other  easement, 
although  not  specially  mentioned  (/)  ;  so  a  market,  with  the 
right  to  take  the  tolls,  may  be  demised  without  deed  (^). 
Where  there  is  a  demise  of  premises,  and  an  entire  rent  re- 
served, if  any  part  of  the  premises  cannot  be  legally  demised, 
the  whole  is  void  (A). 


Sect.  2.  —  Advoivsons. 

Lease  of  advowsons.  —  An  advowson  (advocatio)  is  the  right 
of  presentation  to  a  church  or  ecclesiastical  benefice. 
Although  it  has  been  said  that  an  advowson  *  cannot  [*80] 
properly  be  the  subject  of  a  demise,  on  the  ground 
that  as  no  profit  is  permitted  to  acci'ue,  no  rent  can  be  re- 
served, nor  any  services  performed  to  the  proprietor  (?')  ;  yet 
this  does  not  seem  to  be  quite  correct ;  for  a  lease  may  be 
made  not  only  of  lands,  but  of  all  other  hereditaments  (A:), 
such  as  advowsons,  tithes,  offices  not  concerning  the  admin- 
istration of  justice,  and  the  like  (V)  ;  and  the  lessee  of  tithes, 

{b)  Co.  Lit.  19  b,  20  a.  (^)  Bridgland  v.   Shapter,  5  M.  & 

(c)  Rex  V.  Alresford,  1  T.  R.  358;  W.  375. 

Musgrave    v.    Cave,    Willes,   323 ;    1  (A)  Doe  d.  Griffith  v.  Lloyd,  3  Esp. 

Inst.  9.  78. 

(c?)  Mayfield  v.  Robinson,  7  Q.  B.  (/)     Com.     Dig.     tit.     Advowson 

486;   Wood  v.  Lcadbitter,  13  M.  &  W.  (C.  2).     ■ 

839.  (A-)  Bac.  Abr.  tit.  Leases  (A.). 

(e)  Skull  V.  Glenister,  16  C.  B.,  N.  (/)  2  Cruise,  ss.  22,  24  ;  Bousher  v. 

S.  81  ;  32  L.  J.,  C.  P.  185.  Morgan,  2  Anstr.  404 ;  Cox  v.  Brain, 

(/)  Dobbyn  v.  Somers,  13  Ir.  Com.  3  Taunt.  95. 
L.  Rep.,  N.  S.  293. 

131 


*80  OF   WHAT   TERMS    GRANTED.  [Ch.  III.  S.  3. 

advowsons,  or  any  incorporeal  hereditaments,  Avould  be  liable 
to  an  action  for  the  rent  agreed  upon  (i7i).  An  advowson  is 
a  tenement  (ji).  Where  a  lessee  for  years  of  an  advowson 
was  presented  to  the  benefice  by  the  lessor,  it  was  adjudged 
to  be  a  surrender  to  his  term  (o). 


Sect.  3.  —  Tithes  and  Tolls. 

Leases  of  tithes.  —  By  5  Geo.  3,  c.  17,  persons  having  any 
spiritual  or  ecclesiastical  promotions  are  enabled  to  grant 
leases  of  tithes,  tolls  or  other  incorporeal  inheritances,  solely 
and  without  any  lands  or  corporeal  hereditaments,  for  one, 
two  or  three  life  or  lives,  or  for  any  term  not  exceeding 
twenty-one  years,  which  shall  be  "as  good  and  effectual  in 
law  against  such  archbishop,  bishop,  masters  and  fellows,  or 
other  heads  and  members  of  colleges  or  halls,  deans  and 
chapters,  precentors,  prependaries,  masters  and  guardians  of 
hospitals,  and  other  persons  so  granting  the  same,  and  their 
successors  and  every  of  them,  to  all  intents  and  purposes,  as 
any  lease  or  leases  already  made  or  to  be  made  b}^  any  such 
archbishop,  &c.,"  b}^  virtue  of  the  stat.  32  Hen.  8,  c.  28,  or 
any  other  statute  then  in  being ;  and  actions  of  debt  may  be 
brought  by  such  lessors  for  rent  in  arrear,  as  in  the  case  of 
any  other  landlord  or  lessor.  Leases  of  tithes  must  be  by 
instriiment  under  seal,  as  incorporeal  hereditaments  only  lie 
in  grant  {p).  A  parson  may  grant  his  tithes  for  years  ((^), 
so  he  may  lease  them  for  so  long  a  term  as  he  sliall  continue 
parson  (r)  ;  and  rent  may  be  reserved  on  such  lease  (s)  ; 
or  the  parson  may  demise  them  without  any  rent,  if  he 
pleases  {t).  Under  the  settlement  of  an  estate  with  a  power 
to  the  tenant  in  possession  to  let  all  or  any  part  of  the 


(m)  2  Woodd.  09 ;  Tio<r.  Ecc.  L.  17  ;  (/))  Gardiner  v.  Williamson,  2  B.  & 

Co.  Lit.  119  1).  Ad.  .r.d. 

(n)  Kcnsey  r.  Lanfjliam,  Gas.  tomp.  (7)  Shop.  Touch.  241. 

Talbot,  144  ;  Co.  Lit.  10,  20;  2  Hlac.  (;)  Brewer  v.  Hill,  2  Anst.  413. 

Com.  17;  Robinson  i'.  Tongue,  3   P.  (.s)  T)  Geo.  3,  c.  17. 

Wms.  4(!1.  (t)  Walker  v.  Wakcman,  1  Ventr. 

(o)  Gybson  v.  Searls,  Cro.  Jae.  84,  204  ;  2  Lev.  150;  3  Keb.  597. 
176. 

132 


Ch.  III.  S.  4.]      LEASES   OF   COMMONS   AND   ESTOVERS.  *81 

premises,  so  as  the  usual  rents  be  reserved,  a  lease  of  tithes 
which  had  never  been  let  before  was  held  void  (u). 

*  By  the  Tithe  Commutation  Act  (G  &  7  Will.  4,  [*81] 
c.  71),  the  lessees  of  tithes  commuted  to  rent-charges 
may  surrender  and  avoid  their  leases,  on  certain  terms,  as  to 
compensation  and  apportionment  of  rent,  to  be  settled  by  the 
commissioners.  Until  they  do  so,  they  continue  liable  to 
pay  the  rent  reserved  by  their  leases  (a;). 

Tolls  maybe  let  or  mortgaged  (^). 

Leases  of  tolls.  —  By  3  Geo.  4,  c.  126,  s.  57,  all  contracts  or 
agreements  for  letting  of  turnpike  tolls,  signed  by  the  trus- 
tees or  their  clerk,  and  the  lessee  or  farmer,  and  his  sureties, 
shall  be  valid  notwithstanding  the  same  may  not  be  by  deed 
or  under  seal.  It  has  been  held  that  an  agreement  for  the 
letting  of  tolls  signed  by  the  clerk  of  the  trustees  and  by  the 
lessee  or  farmer  of  the  tolls  was  valid,  and  therefore  could 
be  enforced  by  the  trustees  notwithstanding  it  had  not  been 
signed  by  the  sureties ;  their  execution  of  the  agreement 
being  a  formality  for  the  benefit  of  the  trustees,  which  they 
might  waive  without  prejudice  to  their  rights  against  the 
lessee  or  farmer  of  the  tolls  (3).  Where  a  lessee  of  turn- 
pike tolls  compounded  with  a  person  using  the  road  for  tolls 
for  three  years,  it  was  held  that  such  agreement  was  not 
prohibited  by  3  Geo.  4,  c.  126,  s.  55  (a). 


Sect.  4.  —  Commons  and  Estovers. 

Leases  of  commons.  —  Rights  of  common  may  be  demised 
by  deed  (6).  With  respect  to  commons,  the  13  Geo.  3,  c.  81, 
s.  15,  empowers  the  lord  of  any  manor,  with  the  consent  of 
three-fourths  of  the  persons  having  right  of  common  upon  the 

(«)  Pomcry  v.  Partington,  3  T.  R.  C.  24  ;   Shepherd  v.  Hodsman,  18  Q. 

6G5.  v..  316  ;  Markliam  v.  Stanford,  14  C. 

(x)  Tasker  v.  Bulhnan,  3  Exch.  B.,  N.  S.  370  ;  Gunning  on  Tolls,  140. 
351.  (?)  Markham  v.  Stanford,  14  C.  B., 

{y)  Fairtitle  d.  Mytton  v.  Gilbert,  N.  S.  376. 
2  T.  R.  160  ;  3  Geo.  4,  c.  126  ;  4  Geo.  (a)  Stott  r.  Clegg,  13  C.  B.,  N.  S. 

4,  c.  95,  s.  51 ;  Bell  v.  Nixon,  9  Bing.  619 ;  32  L.  J.,  C.  P.  102. 
393 ;   Pearse  v.  Morrice,  3  B.  &  Ad.  (h)  Sury  v.  Brown,  Latch,  99. 

396  ;  Olroyd  i-.  Crampton,  4  Bing.,  N. 

133 


*82  -OF    WHAT   TERMS   GRANTED.  [Cn.  III.  S.  5. 

wastes  and  commons  within  the  manor,  at  any  time  to  demise 
or  lease,  for  any  term  or  number  of  years  not  exceeding  four 
years,  any  part  of  such  waste  and  commons  not  exceeding  a 
twelfth  part  thereof,  for  the  best  and  most  improved  yearly 
rent  that  can  by  public  auction  be  got  for  the  same ;  and 
directs  that  the  clear  net-rent  shall  be  applied  to  drain,  fence 
and  otherwise  improve  the  residue  of  the  waste  and  commons. 
When  the  lord  of  the  manor  conveys  away  a  part  of  the 
wastes  to  a  third  person,  though  the  right  of  ownership  of 
the  soil  changes  hands,  the  right  of  common  still  subsists  in 
the  commoners  iis  well  over  that  part  of  the  wastes  that  the 
lord  has  conveyed  away,  as  over  that  part  which  he  retains 
in  his  own  hands  (c).     A   common   will  not  pass  without 

express  words  (cZ). 
[*82]         *  Leases  of  estovers.  —  Estovers  may  be  leased ;  the 

grantee,  therefore,  house-bote,  or  hay-bote,  may  let  it 
to  another  (c).  Estovers  to  be  burned  on  land  demised  will 
not  pass  without  express  words  (/). 


Sect.  5.  —  Wai/s. 

Leases  of  ways.  —  A  right  of  way  legally  appurtenant  to 
land  is  demisable  with  the  land  (//),  and  will  pass  with  it 
without  being  expressly  mentioned  (/i),  even  by  a  parol 
demise  (Q ;  so  will  a  right  to  dig  turf,  or  other  pre-existing 
easement  (7c).  But  after  a  way  or  other  easement  has  been 
extinguished  by  unity  of  ownership,  it  cannot  be  revived  by 
a  grant  or  lease  of  the  dominant  tenement  containing  gen- 
eral words,  such  as  "  rights,  members,  easements  and  appurte- 
nances thereunto  belonging  or  appertaining"  (Q.        But  it 

(c)  Benson  v.   Chester,  8   Tr.  396,  190 ;  Staple  v.  Ileydon,  6  Mod.  1,  3  ; 

401.  Howton  V.  Fearson,  8  T.  R.  50,  56  ; 

(rf)  Clark  V.  Coggc,  Cro.  Jac.  170,  Bac.  Ahr.  tit.  Offices  (H.). 

190.  (0  Skull  V.  Glenister,  16  C.  B.,  N. 

(e)  Sliep.    Touch.   222  ;    Bac.    Abr.  S.  81  ;  32  L.  J.,  C.  P.  185. 

tit.  Leases  (A.).  (A)  Dohbyn  v.  Somers,  13  Ir.  Com. 

(/)  Clark  .;.  Cogge,  Cro.  Jac.  170,  L.  Rep.,  N.  S.  293. 

190.  (/)  Barlow  v.  Rhodes,  1  Cr.  &  M. 

(fj)  O-sborne  v.  Wise,?  C.  &  P.  701.  439,  448. 

(h)  Clark  v.  Cogge,  Cro.  Jac.  170, 

134 


Ch.  III.  S.  6.]      LEASES   OF    FRANCHISES    AND   CORRODIES.      *83 

may  pass  by  the  words  "  or  therewith  usually  held,  occupied 
or  enjoyed  "  (m).  And  if  it  be  a  way  of  necessity  it  will  pass 
with  the  principal  subject-matter  of  the  grant  or  demise, 
without  any  mention  of  ways  or  appurtenances  (?i).  So  will 
a  watercourse  or  other  necessary  easement  (o). 


Sect.  6.  —  Franchises  and  Corrodies. 

Leases  of  franchises.  —  Franchises  may  be  demised  by 
deed  (p),  except  indeed  in  some  few  particular  cases  (as 
where  the  franchise  is  a  personal  immunity,  &c.)  ;  thus  a  fair 
or  market,  either  with  or  without  the  right  of  taking  toll, 
either  there  or  at  any  other  public  places,  as  at  bridges, 
wharfs,  or  the  like,  may  be  demised  (^).  A  market,  with  a 
right  to  take  the  tolls,  may  be  demised  without  deed  (r). 
A  franchise  granted  to  one  cannot  be  bestowed  on  another 
to  the  prejudice  of  a  former  grant  (s).  Every  fair  is  a  mar- 
ket, but  every  market  is  not  a  fair  (t).  A  market  which  is 
held  on  the  wrong  day  (Saturday  instead  of  Friday)  is  not  a 
market  "legally  established  "  (?t).  The  right  to  a  market 
may  be  barred  by  the  Statute  of  Limitations  (.z;)- 

*  A  corrody  is  a  right  of  sustenance,  originating  in  [*83] 
the  endowment  of  lands :  in  lieu  of  which,  especially 
when  due  from  ecclesiastical  persons,  a  pension  or  sum  of 
money  was  sometimes  substituted;  and  these  were  charge- 
able on  the  person  of  the  owner  of  the  inheritance  in  respect 
thereof  (y).  A  corrody  was  either  certain  or  uncertain,  and 
might  not  only  be  for  life  or  years,  but  in  fee.  If  one  had  a 
corrody  for  life,  he  might  let  it  to  another,  or  to  the  grantor 
himself  (z). 

(?n)  James  v.  Plant  (in  error),  4  A.  (s)  2  Roll.  Abr.  191. 

&  E.  749 ;  Kooystra  v.  Lucas,  5  B.  &  (0  2  Inst.  221,  406. 

A.  830  ;  Bradsliaw  v.  Eyre,  Cro.  Eliz.  (»)  Benjamin  v.  Andrews,  5  C.  B., 

570.  N.  S.  299. 

(n)  Morris  v.  Edgington,  3  Taunt.  (.r)  Holcroft  v.  Steel,  1  Bos.  &  P. 

24  ;  Davies  v.  Sear,  L.  R.,  7  Eq.  427.  400. 

(o)  Sury  V.  Pigot,  Popham,  166.  (//)  2  Blac.  Com.  40. 

(p)  Duke  of  Somerset  v.  Fogwell,  (~)  Bac.  Abr.  tit.  Leases  (A.)  ;  R. 

5  B.  &  C.  875.  V.  Nicholson,  12  East,  3-30 ;  Peter  v. 

(7)  2  Inst.  221,  406.  Kendal,   6    B.   &   C.   703;    Beere   v. 

(7)  Bridgland  v.   Shapter,  5  M.  &  Windebanke,  Sid.  80. 
W.  375. 

135 


*84  OF   WHAT   TERMS   GEAjSTTED.  [Ch.  III.  S.  9. 

Sect.  7.  —  Annuities. 

Leases  of  annuities.  —  An  annuity  is  an  annual  sum  of 
money  granted  to  another  in  fee,  for  life,  or  years,  which 
charges  the  person  of  the  grantor  only ;  or  it  may  be  due  by 
prescription,  which  always  implies  a  grant.  Such  annuity 
may  be  demised  by  way  of  assignment  (a).  Rents  may  also 
be  granted  by  way  of  lease  (?>). 


Sect.  8.  —  Right  of  Sporting. 

Right  of  sporting.  —  A  demise  of  an  incorporeal  heredita- 
ment can  only  be  valid  by  deed  (c),  unless  granted  with 
some  corporeal  hereditament  as  appurtenant  thereto  ((?). 
The  right  of  hunting,  shooting,  fishing,  i&c.  is  an  interest 
in  the  realty,  and  a  grant  of  it  is  a  licence  of  a  profit 
a  prendre  (e).  Such  rights  can  be  granted  or  demised  only 
by  deed.  But  if  the  lessee  has  actually  used,  occupied  and 
enjoyed  such  rights  under  a  parol  agreement,  he  must  pay 
for  such  enjoyment,  and  may  be  sued  in  an  action  for  use  and 
occupation  (/).  A  corporation  aggregate  may  maintain  an 
action  for  use  and  occupation  of  tolls,  although  they  did  not 
grant  them  by  any  instrument  under  their  common  seal  (^). 


Sect.  9.  —  Chattels. 


Leases  of  chattels.  —  Goods  and  chattels  may  be  let  for 

years,  though  the  terms  "landlord  "  and  "tenant"  are 

[*84]     inapplicable  to  such  letting,  and  the  interest  *  of  the 

(a)  Co.  Lit.  144  b;  Com.  Dig.  tit.  (J)  ^qc  post,  Chap.  XVIII.,  Sect,  6, 

Annuity  (A.  1).  "Game." 

(6)  Hae.  Abr.  tit.  Leases  ;  Thomas  (e)  Ewart  v.  Graham,  7  II.  L.  Cas. 

V.  Fredericks,  10  Q.  B.  775;  Co.  Lit.       ?.Z\  ;  20  L.  J.,  Ex.  88. 
144  b;  Com.  Dig.  tit.  Annuity  (A.  1),  (/)  Tlionias   v.  Fredericks,    10  Q. 

(E.).  B.  775;  Ilolford  r.  Pritchard,  .'J  E.xch. 

(r)  Duke  of  Somerset  v.  Fogweli,       70.3;  post,  Chap.  XIV. 
5   B.   &   C.   875,   882,    880;    Bird    r.  (//)  Mayor,  &c.,  of   Carmarthen  v. 

IIif,'gin8on,  2  A.  &  E.  090;  0  A.  &  E.       Lewis,  0  C.  &  P.  008  ;    Drury    Lane 
824.  Tiieatre  Co.  i;.  Ciiapinan,  1  C.  &  K. 

14. 
13G 


Ch.  III.  S.  9.]  LEASES   OF   CHATTELS.  *84 

lessee  therein  differs  from  the  interest-  which  he  has  in 
lands.  If  a  man  lease  for  years  a  stock  of  live  cattle,  such 
lease  is  good,  and  the  lessee  has  the  use  and  profits  of  them 
during  the  term ;  but  he  cannot  destroy,  kill,  sell  or  give 
them  away  without,  it  seems,  being  liable  to  an  action  of 
trespass  (A).  The  lessor,  however,  has  not  any  reversion 
in  them,  as  in  the  case  of  lands,  to  grant  over  to  another 
either  during  the  term  or  after,  till  the  lessee  has  re-deliv- 
ered them  to  him ;  for  the  lessor  has  only  a  possibility  of 
property  in  case  they  all  outlive  the  term ;  for  if  any  of  them 
die  during  the  term,  the  lessor  cannot  have  them  replaced 
after  the  term ;  and  during  the  term  he  has  nothing  to  do 
with  them,  and  consequently  of  such  as  die  the  property 
vests  absolutely  in  the  lessee.  So,  whether  they  live  or  die, 
yet  all  the  young  ones  coming  of  them,  as  lambs,  calves,  &c., 
belong  absolutely  to  the  lessee  as  profits  arising  and  severed 
from  the  principal,  since  otherwise  the  lessee  would  pay  his 
rent  for  nothing ;  and  therefore  this  differs  from  a  lease  of 
dead  goods  and  chattels,  for  there,  if  anything  be  added  for 
the  repairing,  mending  or  improving  thereof,  the  lessor  shall 
have  the  improvements  and  additions,  together  with  the 
principal,  after  the  lease  ended,  because  they  cannot  be  sev- 
ered without  destroying  or  spoiling  the  principal  (^). 

Leases  of  furniture.  —  A  mixed  payment  of  rent  for  lands 
and  goods  is  held  to  issue  out  of  the  land  alone,  and  the 
rent  may  be  distrained  for  (^). 

(k)  Lit.  s.  71 ;   Doe  d.  Griffith   v.  (k)  Newman  v.  Anderton,  2  B.  &  P. 

Lloyd,  3  Esp.  78.  224;  Sclby  v.  Greaves,  L.  R.,  3  C.  P. 

(0  Bac.  Abr.  tit.  Leases  (A.)  ;  Col-  594. 
lins  V.  Harding,  Cro.  Eliz.  606. 

137 


[*85]         •  *  CHAPTER  IV. 

THE  AGREE^VIENT  FOR   A  LEASE. 


SECT.  PAGE 

1.  Agreement   for  Lease    must 

be  in  Writing 85 

(a)  What  Agreement  must 
state 88 

(b)  Signature  of  Agreement  92 
Effect  of  Parol  Alterations  93 

2.  Stamp 94 

3.  Remedies  for  Breach    ...  94 

4.  Action  for  Specific  Perform- 

ance      96 

(a)  Oral  Agreement  with 
Part  Performance      .     .     .     100 

(b)  Completeness     of     Coh- 

tract 101 

What     Acceptance     suffi- 
cient      103 

Revocation  of  Proposal      .     103 
Counter-Proposal      .     .     .     103 

(c)  Agreement  subject  to 
preparation  of  formal  Con- 
tract     104 


SECT. 

FAOS 

5. 

Grounds  for  Refusal  of 

Spe- 

cific  Performance 

105 

Indefiniteness   .     .     . 

105 

Misrepresentation 

106 

Concealment     .     .     . 

107 

Illegalitv      .... 

107 

Insufficiency  of  Title 

108 

Hardship      .... 

109 

Breach  of  Trust   .     . 

110 

Forfeiture    .... 

110 

Impossibility    .     .     . 

111 

Failure  of  Condition 

113 

Laches     

.     115 

6. 

Specific   Performance 

[yy  or 

against  Particular  Persons     117 

7. 

Decree  for  Specific  Per 

form 

.     119 

"Usual  Covenants" 

.     120 

8. 

Solicitor's  Charges  .    . 

.    123 

Sect.  1.  —  Aii  Agreement  for  Lease  must  be  in  Writing. 

We  shall  see  presently  (a)  that,  by  the  combined  operation 
of  the  Statute  of  Frauds  and  8  &  9  Vict.  c.  106,  s.  3,  a  lease 
for  more  than  three  years  is  void  unless  made  by  deed,  and 
that  leases  for  three  years  or  less  may  be  made  by  parol.^ 
But  although  a  lease  for  three  years  may  be  made  by  parol, 
an  agreement  for  a  lease  for  however  short  a  term  must,  in 

(a)  Post,  Chap.  V. 

1  The  Statute  of  Frauds. —The  Statute  of  Frauds  has  been  re-enacted 
with  vari.'itions  in  all  tlie  American  states  and  provinces.  I>eases,  except  for 
specified  limited  jjcriods,  arc  required  to  be  in  writing,  but  not  in  the  majority 
of  them,  even  when  exceeding  tiie  limited  periods,  to  be  by  deed.  See  post, 
Chap,  v.,  note. 

138 


Ch.  IV.  S.  1.]       AGREEMENT   MUST   BE   IN    WRITING.  *86 

order  to  be  sued  ujjon  as  such,  be  in  writing  signed  by  the 
party  to  be  sued.  For  by  the  4th  section  of  the  Statute  of 
Frauds,  it  is  enacted  that  "  no  action  shall  be  brought  whereby 
to  charge  any  person  upon  any  contract  or  sale  of  lands, 
tenements  or  hereditaments,  or  any  interest  in  or  concerning 
tJiem^  or  upon  any  agreement  that  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making  thereof,  unless 
the  agreement  upon  which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof^  shall  be  in  writing  and 
signed  hy  the  party  to  he  charged  therewith^  or  some  other 
person  by  liim  lawfully  authorized  "  (^).^ 

An  agreement  for  a  lease  is  a  contract  for  an  interest  in 
lands  within  the  meaning  of  sect.  4,  and  has  always  been  so 
treated  both  at  law  (c)  and  in  equity  (d).  We  shall 
see  presently,  however,  that  *  effect  has  been  fre-  [*86] 
quently  given  both  at  law  and  in  equity  to  parol 
agreements.  At  law  a  party  entering  as  a  tenant,  and  evi- 
dencing his  intention  to  continue  such,  has  always  been 
treated  as  a  tenant  from  year  to  year  upon  the  terms  of  the 
agreement ;  while  in  equity  a  "  ptn-t  performance "  by  the 
one  party  has  frequently  entitled  him  to  a  specific  perfor- 
mance by  the  other. 

Effect  of  agreement.  —  It  was  said  by  Jessel,  M.  R.,  in  Walsh 
V.  Lonsdale  (e),  that  the  effect  of  the  Judicature  Acts  (see 
Judicature  Act,  1873,  s.  25,  sub-s.  7)  is  that  a  tenant  holding 
under  an  agreement  for  a  lease  of  which  specific  performance 

(6)  Not  saying  "by  writing,"  as  in  not  execute  a  parol  agreement,  not  in 

sects.  1,  3.  part   performed,    and    it   is    said    by 

(c)  See  especially  Edge  I'.  Strafford,  Story  {ubi  supra)  to  be  obvious  that 

1  Tyr.  295;  1  Cr.  &  J,  391.  courts  of  equity  are  bound  as  much 

(rf)  Story  Eq.   vol.   1,   s.    754.      It  as  courts  of  law  by  the  provisions  of 

may  be   doubted  whether   the  word  the  statute. 

"action"  in  the  4th   secti<m  of   the  (e)  L.  R.,  21  Ch.  D.  9;  52  L.  J., 

vStatute  of  Frauds  included  "suit";  Ch.  2;  40  L.  T.  858;  31  W.  R.  109; 

but,  however  this  may  be,  courts  of  C.  A. 
equity,  even  before  the  statute,  would 

1  By  the  4th  section  of  the  Statute  of  Frauds  as  re-enacted  in  America 
the  same  distinction  pointed  out  in  the  text  between  tlie  requirements  as  to 
leases  and  agreements  for  leases,  has  been  established  here,  as  exists  in  Eng- 
land. 

The  agreement  for  a  lease,  or  a  memorandum  of  it,  must  in  all  cases  be  in 
writing  (subject  to  the  doctrine  of  part  performance  of  course). 

139 


*86  AGREEMENT    FOR   LEASE.  [Ch.  IV.  S.  1. 

would  be  granted  is  not  a  tenant  from  year  to  year  only, 
but  a  tenant  holding  under  the  lease  itself.^  In  this  case  the 
defendant  agreed  to  grant  and  the  plaintiff  to  accept  a  lease 
at  a  jEixed  rent  payable  in  advance,  and  for  this  rent  in 
advance,  after  entry  by  the  plaintiff  and  part  payment  of 
rent,  the  defendant  distrained,  and  the  court  granted  an 
injunction  restraining  the  distress  upon  the  terms  that  the 
rent  should  be  paid  into  Court.  It  is  to  be  observed  that 
the  plaintiff  having  entered  and  paid  rent  would,  even  at 
law  as  a  tenant  from  year  to  year,  have  been  liable  to  dis- 
tress (/)  and  that  if  the  dictum  of  Jessel,  M.  R.,  be  correct, 
the  Stat.  8  &  9  Vict.  c.  106,  whereby  leases  for  more  than 
three  years  must  be  by  deed,  is  rendered  practically  inopera- 
tive. The  dictum  has  been  twice  approved  of  (^) ;  but  it 
is  submitted  that  it  is  still  doubtful  whether  the  case  is  one 
in  which  before  the  Judicature  Act  there  was  a  conflict 
between  the  rules  of  law  and  the  rules  of  equity  in  respect 
to  the  same  matter. 

Uselessness  of  agreement.  —  However  this  may  be,  it  is 
suggested  that  an  agreement  for  a  lease  may  well  be  dis- 
pensed with  in  most  cases,  and  that  it  would  be  better  for 
both  parties  that  a  tenant  should  be  let  into  possession  upon 
an  actual  lease.  The  agreement  has  no  advantage  in  saving 
any  stamp  duty  (/7^,  but  some  short  binding  contract  may 
sometimes  be  required  for  the  reason  that  each  party  wishes 
to  bind  the  other  in  a  shorter  time  than  would  be  occupied 
by  the  negotiations  as  to  the  terms  of  a  lease.  In  such  cases 
it  would  frequently  suffice  that  ths  intending  tenant  should 
either  enter  on  an  express  contract  of  tenancy  from  year  to 
year  only,  leaving  the  terms  of  the  lease  to  be  settled  by 
after  negotiations,  or  should  pay  a  small  deposit  in  return 
for  the  privilege  of  more  prolonged  negotiations. 

(/)  See     Knipht     v.    Bennett,    11  Chitty,  J.,  in   Alllmsen  v.  Brooking, 

Moore,  222,  and  410,  post.  L.  R.  26  Ch.  D.  at  p.  505. 

(ff)  By  Field,  J.,  in  MauRlian  in  (g)  See  post,  Sect.  2. 

re,  L.  R.  i4  Q.  B.  D.  at  p.  058,  and  by 

'  Lease  in  equity.  —  "An  aKreement  for  a  lease  is  a  lease  in  equity,"  ;;cr 
Mowat,  V.  C,  in  Simmons  v.  Campbell,  17  Cliy.  (Ont.)  (512,  (>17. 

It  is,  however,  no  longer  a  lease  in  equity  if  proposed  lessee  has  broken 
the  intended  covenants.     Swain  v.  Ayres,  20  Q.  B.  D.  686. 

140 


Ch.  IV.  S.  1.]       AGREEMENT   MUST   BE   IN   WRITING.  *87 

What  is  an  interest  in  land.  —  The  words  "  any  in- 
terest in  land  "  in  the  4th  section  of  the  Statute  *  of  [*87] 
Frauds,  are  very  wide,  and  include  an  interest  how- 
ever small  for  a  term  however  short,  provided  tuat  the  tenant 
is  to  have  exclusive  possession.  An  early  decision  to  this 
effect,  in  which  the  statute  was  held  to  apply  to  a  contract 
to  let  lodgings  (Zs),  was  emphatically  affirmed  by  the  leading 
case  of  Edge  v.  Strafford  (i),  where  the  defendant  had  agreed 
by  parol  to  take  the  ready-furnished  lodgings  of  the  plaintiff 
for  two  or  three  years,  and  the  Court  held  that  no  action 
could  be  maintained  for  breach  of  the  agreement.  But 
where  the  contract  was  for  board  and  lodging  at  a  boarding- 
house,  but  in  no  specific  rooms,  it  was  held  that  although 
the  contract  was  unwritten,  an  action  lay  for  the  breach  (Z:)  ; 
and  the  two  cases  are  clearly  distinguishable  on  the  ground 
that  exclusive  possession  was  bargained  for  in  one  but  not 
in  the  other.^ 

Contract  to  procure  lease.  —  A  contract  to  procure  a  lease 
must  also  be  in  writing,  although  it  is  entered  into  by  a  per- 
son who  has  no  interest  in  the  lease  himself  (Z). 

"  Collateral "  agreement.  —  If  the  agreement  be  to  let  and 


(h)  Inman  v.  Stamp,  1  Stark.  12.  P.  191  ;  30  L.  J.,  C.  P.  58 ;    23  L.  T. 

(i)  1  Tyr.  295  ;  1  Cr.  &  J.  391.  495.     In  tliis  case  the  contract  was  to 

(k)  Wright  V.  Stavert,  2  E.  &  E.  jirociire   the   assijjiinient  of   a   lease, 

721 ;  29  L.  J.,  Q.  B.  101.  but  the  principle  is  tlie  same. 
(/)  Horsey  v.  Graham,  L.  R.,  5  C. 


1  Lodgings;  board  and  lodgings,  &c.  —  In  White  r.  Maynarrl,  111 
Mass.  250,  and  in  Wilson  r.  Martin,  1  Denio  (N.  Y.)  602,  it  was  hehl  that  con- 
tracts for  board  and  lodging,  though  in  designated  rooms,  were  not  witliin  the 
statute.  Bronson,  J.,  in  the  last-named  case,  saying,  that  the  contract  "was 
nothing  more  than  an  agreement  for  board  and  lodging,  with  a  designation 
of  the  particular  rooms  which  the  defendant  was  to  occupy,"  and  the  relation 
of  landlord  and  tenant  did  not  arise. 

Justice  Gray,  in  the  first-named  case,  distinguishes  Inman  r.  Camp  and 
Edge  V.  Strafford  (cited  by  the  author),  saying  it  did  not  appear  in  those 
cases  that  the  rooms  were  in  a  boarding-house.  He  cites  Wright  v.  Stovert 
witli  approval. 

In  Porter  r.  Merrill,  124  Mass.  534,  a  contract  for  letting  certain  specified 
rooms  in  an  apartment  house,  containing  a  restaurant,  with  an  agreement  to 
serve  a  private  table,  was  held  to  create  a  tenancy.  Ames,  J.,  distinguishes 
it  from  White  v.  Maynard,  as  not  being  case  of  "a  contract  between  the 
keeper  of  a  boarding-house  and  a  lodger." 

141 


*88  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  1. 

do  something  else  for  the  intending  tenant,  it  must  be  in 
writing,  unless  the  two  parts  of  it  are  severable.  Thus,  in 
Mechelen  v.  Wallace  (m),  the  tenant  promised  to  become  such 
in  consideration  that  the  landlord  would  send  in  more  furni- 
ture. The  landlord  did  not  send  in  the  furniture,  but  the 
tenant  failed  to  recover,  on  the  ground  that  the  agreement 
to  send  in  furniture  was  an  inseparable  part  of  the  contract 
for  the  lease.  Similarly,  where  the  plaintiff  agreed  to  let  a 
house  to  the  defendant,  and  to  sell  him  the  furniture  and 
fixtures,  it  was  held  that  this  was  a  contract  which  must  be 
in  writing  (n). 

But  in  Angell  v.  Duke  (o),  the  court  held  that  an  agree- 
ment that  the  landlord  should  do  repairs  and  send  in  furni- 
ture was  collateral  to  the  main  agreement  to  let,  so  as  not 
to  require  to  be  in  writing  within  the  statute,  although  the 
tenant  ultimately  failed  to  recover  upon  it  on  the  ground 
that  parol  evidence  is  inadmissible  to  vary  a  written  agree- 
ment (^p). 

"Collateral"  agreement.  —  In  Adams  ?'.  Hagger,  the  plain- 
tiff agreed  to  grant  to  the  defendant  a  lease  at  a  certain  rent 
for  99  years  of  a  piece  of  land  so  soon  as  the  defendant 
should  have  erected  a  house  upon  it,  and  the  defendant 
undertook  until  the  execution  of  the  lease  to  "  hold  the  said 
piece  of  land  and  other  the  premises  at  the  rent  and  subject 
to  the  conditions  to  be  contained  "  in  the  lease.  It 
[*88]  was  held  by  the  Court  of  Appeal  *  that  the  defend- 
ant was  lial)le  to  pay  the  rent,  although  he  had  not 
entered  upon  or  taken  possession  of  the  piece  of  land  {q). 

An  agreement  after  lease  granted  that  the  landlord  shall 
enlarge  the  premises,  and  the  tenant  pay  a  percentage  on  the 
landlord's  outlay,  is  not  within  the  statute  (r),  and  therefore 
need  not  be  in  writing.     This   was  held  in   two  cases  (r), 

(m)  7  A.  &  E.  40  (decided  on  de-  750;  42  L.J.,  Ch.  840;  20  L.  T.  234; 

nmrrer).  21  W.  R.  802. 

(n)  Vaughan  v.  Hancock,  3  C.  B.  (/>)  Angell  ;•.  Duke,  32  L.  T.  320. 

7G0.  («7)  Adams  v.   Hagger,  L.  R.,  4  Q. 

(o)  L.  R.,  10  Q.  B.  174  ;  44  L.  J.,  B.  1).  480;  27  W.  R.  402  — C.  A. 

Q.  B.  78  ;  32  L.  T.  25.     And  see  Mor-  (r)  IIolz  v.  Roebuck,  7  Taunt.  157  ; 

gan  D.  GriffitliH,  L.  R.,  0  Ex.   70;    40  Donellan   v.   Read,  3  B.  &  Ad.  800; 

L.  .1.,  Ex.  40 ;  23  L.  T.  783 ;  10  W.  R.  see  also  Lambert  v.  Norris,  2  M.  &  W. 

057 ;  Erskine  v.  Adeane,  L.  R.,  8  Ch.  333. 

142 


Ch.  IV.  S.  1.]     AGREEMENT   MUST   BE   IN    WRITING.  *88 

where  the  landlord  having  executed  improvements  recovered 
the  consideration  money  by  action  at  law,  and  the  principle 
of  such  cases  would  seem  to  apply  to  an  action  for  specilic 
performance. 

Contract  itself  need  not  be  in  writing.  —  The  4th  section  of 
the  Statute  of  Frauds  does  not  absolutely  require  the  con- 
tract itself  to  be  in  writing,  but  allows  the  alternative 
of  some  written  "  memorandum  or  note  thereof "  properly 
signed ;  and  the  memorandum  or  note  need  not  be  prepared 
at  the  time,  nor  be  intended  as  a  contract,  or  even  as  evi- 
dence thereof.  A  letter  written  by  the  defendant  to  the 
plaintiff,  which  mentions  all  the  material  terms  of  the  con- 
tract, may  be  sufficient,  although  the  defendant  thereby 
attempts  ta  deny  or  repudiate  his  liability  (.s).  A  correspond- 
ence between  the  defendant  and  his  own  agent,  which  men- 
tions all  the  material  terms  of  the  contract,  may  be  suffi- 
cient (Q.  A  letter  to  a  third  person,  mentioning  all  the 
material  terms  of  the  agreement,  may  be  sufficient  (w)  ;  but 
if  any  material  terms  of  the  contract  be  unsettled  and  dis- 
puted the  writing  will  not  be  sufficient  (.c).  The  bare  entiy 
of  a  steward  in  the  lord's  contract  book  with  his  tenants  is 
not  an  evidence  of  itself  that  there  is  an  agreement  for  a 
lease  between  the  landlord  and  tenant  (?/). 

(a)  What  the  Agreement  for  a  Lease  must  state. 

"Writing  must  state  all  material  terms,  e.g.  names.  —  The 
agreement,  or  the  memorandum  or  note  thereof  (as  the  case 
may  be)  inust  state  all  the  material  terms  of  the  contract  (s),^ 

(s)  Bailey  v.  Sweeting,  9  C.  B.,  N.  n. ;  Segood  v.  Meale,  Prec.  Ch.  560 ; 

S.  843;   Williinson  v.  Evans,  L.  R.,  1  Barkwortli  v.  Young,  4  Drew.  1,  13. 

C.  P.  407  ;  35  L.  J.,  C.  P.  224  (these  (x)  Forster  v.  Rowland,  7  H.  &  N. 

cases  were  under  sect.  17)  ;  Jackson  103;  30  L.  J.,  Ex,  396. 

w.  Oglander,  2  H.  &  M.  465;    13  W.  (//)  Cliarlewood    v.  Duke    of   Bcd- 

R.  936.  ford,  1  Atk.  497. 

(0  Gibson  v.  Holland,  35  L.  J.,  C.  {z)  Clarke,  app..  Fuller,  resp.,   16 

P.  6.  C.  B.,  N.  S.  24;    12  W.  R.  071.     See 

(?t)  Welford    v.    Beazely,   3    Atk.  Fry  on  Specific  Performances,  p.  98. 
503;  Child  v.  Comber,  3  Swans.  423, 

^  A  contract  within  the  statute  may  be  part  of  an  entire  contract  not 
within  it,  and  so  be  held  binding.  2  Reed  on  Statute  of  Frauds,  sec.  560; 
Wentwortli  v.  Buhler,  3  E.  1).  Smith,  305. 

143 


*89  AGREEMENT   FOE   LEASE.  [Ch.  IV.  S.  1. 

ex.  gr. :  1.  The  name  of  the  lessor  or  his  agent  (a)  ;  and 
2.  The  name  of  the  lessee  or  his  agent  (6) :  but 
[*89]  in  each  of  these  cases  such  a  description  *  of  the 
contracting  parties  that  there  cannot  be  any  fair 
dispute  as  to  their  identity  is  as  good  as  naming  them. 
Such  ((?)  seems  to  be  the  effect  of  the  numerous  cases  (tZ) 
in  which  a  contract  for  the  sale  of  land  describing  but  not 
naming  the  vendor,  has  been  held  good ;  and,  as  a  lease  is  a 
sale  pro  tanto,  these  cases  would  seem  to  be  equally  applica- 
ble to  an  ajjreement  for  a  lease. 

3.  Writing  must  state  description  of  property.  —  The  writing 
must  state  the  name  or  other  df^scription  >  f  the  property  to 
be  demised  (e)  ;  but  the  property  need  not  be  so  described 
as  to  identify  it ;  parol  evidence  being  always  admissible 
upon    the    question   of   "parcel   or   no   parcel "  (/).     "Mr. 

(a)  Warner  r.  Willington,  3  Drew.  App.  Cas.  1124;  48  L.  J.,  Ch.  10;  39 

523;  25  L.  J.,  Ch.  052  ;  ^411en  v.  Ben-  L.  T.  173;  26  W.  R.  855;  ("proprie- 

nett,  3  Taunt.  169;  Cooper  i'.  Smith,  tors"    held    suffic-icnt  description    of 

15    East,  103;    Hughes  v.  Parker,  8  vendors);  Catling  v.  King,  L.  R.,  5 

M.  &   W.  244;    1   Dowl.,  N.  S.  80;  "Cli.  D.  660;  46  L.  J.,  Ch.  384;  36  L. 

Hood   r.  Lord   Barrington,  L.  R.,  6  T.  526;  25  W.  R.  550— C.  A.;  Com- 

Eq.  218  ;  Williams  v.  Jordan,  L.  R.,  mins  v.  Scott,  L.  R.,  20  Eq.  11 ;  44  L. 

6  Ch.  D.  517  ;  26  W.  R.  230.  J.,  Ch.  563  ;  32  L.  T.  420 ;  23  W.  R. 

(6)  Squire  v.  Whitton,  1  H.  L.  Cas.  498 ;  Sale  v.  Lambert,  L.  R.,  18  Eq. 

333;    Williams   v.  Lake,  2    E.  &  E.  1;  43  L.  J.,  Ch.  740.     In  Thomas  .•. 

349;   29  L.  J.,  Q.  B.  1  ;   Skelton  v.  Brown,  L.  R.,   1  Q.  B.  D.  714,  the 

Cole,  1  De  Gex  &  J.  587  ;  Hughes  v.  point  also  arose,  but  was  not  decided. 

Parker,  8  'SI.  &  W.  244.  (e)  Stewart  v.  AUiston,  1  Mer.  33; 

(c)  See   Potter  v.   Duffield,   L.  R.  Ogilvie  r.  Foljambe,  3  Mer.  53 ;  Ken- 

18  Eq.  4  ;  43  L.  J.,  Ch.  472  ;  22  W.  R.  ncdy  v.  Lee,  3  Mer.  441,  451 ;  Daniels 

585,   per    Jessel,    M.    R.,    in    which  v.    Davison,    16   Ves.    249;    Price   v. 

"vendor"    was    held    to    be    not    of  Griffith,  1  Dc  Gex,  M.  &  G.  80;  Ilay- 

itself  sufficient.  wood  v.  Cope,  25  Beav.  140. 

(J)  See  Rossitcr  i-.  Miller,  L.  R.,  3  (/)  Fry,  s.  209;  Bleakley  v.  Smith, 

The  terms  of  memorandums  for  leases  or  other  contracts  cannot  be  sup- 
plied by  parol  testimony,  Parkhurst  v.  Van  Cortlandt,  1  .lolins.  Ch.  (N.  Y.) 
273;  McKibbin  v.  Brown,  14  N.J.  Eq.  13;  Duffield  v.  Whitlock,  IIolT.  Ch. 
(N.  Y.)  110  &  26  Wend.  (N.  Y.)  55;  Huff  v.  Shepard,  58  Mo.  242;  Morton 
V.  Dean,  13  Met.  (Mass.)  385;  Gill  v.  Bicknell,  2  Cush.  (Mass.)  355,  358,  359 
(per  Sliaw,  C.  J.);  nor  varied  by  sul)sequent  parol  contract.  Brooks  i'. 
Wheclock,  11  Pick.  (Mass.)  439. 

"  Unless  the  essential  terms  of  the  bargain  and  sale  can  be  ascertained 
from  the  writing  itself,  or  by  a  reference  contained  in  it  to  something  else, 
the  writing  is  not  a  compliance  with  the  statute,"  per  Kent,  Chan.,  in  Park- 
burst  V.  Van  Cortlandt,  supra,  p.  280. 

144 


Ch.  IV.  S.  1.]      AGREEMENT   MUST   BE    IN    WlilTlNG.  *90 

Ogilvie's  house,"  may  be  sufficient  (,17).  "The  property  in 
Cable  Street,"  coupled  with  parol  evidence  of  identity,  may 
be  sufficient  (A),  and  so  may  "  the  mill  property,  including 
cottages  in  Esher  village  "  (Q,  and  "  the  lease  and  every- 
thing "  for  60?.,  coupled  with  parol  evidence  to  show  what 
lease  was  intended,  and  with  a  previous  memorandum  show- 
ing what  "everything"  meant  (/c).  "Two  seams  of  coal, 
known  as  the  tM^o-feet  coal  and  the  three-feet  coal,  lying 
under  lands  hereafter  to  be  defined  as  the  Bank  End  Estate," 
has  been  held  sufficient,  the  latter  words  being  construed  to 
refer  only  to  the  boundaries  of  the  estate,  and  not  to  the 
seams  of  coal  agreed  to  be  demised  (/).  But  where  the 
agreement  was  indefinite  as  to  the  area  over  which  the  iron- 
stone was  to  be  worked,  the  court  (for  that  and  other  rea- 
sons) refused  a  specific  performance  (w).  An  agreement 
by  an  incumbent  to  demise  his  glebe,  containing  about  437 
acres,  "  except  thirty-seven  acres  thereof  "  (which  were  not 
specified),  was  held  sufficient,  as  the  lessor,  it  was  said,  might 
elect  which  thirty-seven  acres  should  be  excepted  (w).  A 
description  of  the  property  by  reference  to  preceding  deeds, 
wherein  it  is  described,  is  sufficient  (0). 

Difference  in  quantity.  —  A  mere  difference  in  quantity  has 
never  been  held  a  bar  to  specific  performance ;  —  the  Court 
of  Chancery  always  drew  a  distinction  between  the  essential 
and  non-essential  terms  of  a  contract,  and  allowed  the 
incapacity  to  perform  it  in  non-essential  terms,  to  be 
*  made  the  subject  of  compensation.  In  McKenzie  [*90] 
V.  Hesketh  (|>),  for  instance,  the  plaintiff  offered  to 
take  a  lease  of  a  farm  of  the  defendant  at  a  rent  of  500Z.  per 
annum,  specifying  in  his  tender  the  closes  which  he  wished 

11    Sim.    150;     Owen   v.   Thomas,   3  (/)  Haywood  w.  Cope,  25  Bea v.  140; 

Myl.  &  K.  353 ;    Price   v.  Griffith,  1  but  see  Lancaster  v.  De  Trafford,  31 

De  Gex,  M.  &  G.  80.  L.  J.,  Ch.  554 ;  8  Jur.,  N.  S.  873. 

(g)  Ogilvie   v.    Foljambe,   3    Mer.  (?«)  Lancaster  z'.  De  Trafford,  sx/im. 

61.  (?i)  Jenkins  v.  Green,  27  Beav.  437  ; 

(A)  Bleakley    v.    Smith,    11     Sim.  28  L.  J.,  Ch.  817. 

150.  (o)  Owen  v.  Thomas,  3  Myl.  &  K. 

(i)  McMurray  v.  Spicer,  L.    R.,  5  353. 

Eq.  527  ;  37  L.  J.,  Ch.  505.  (73)  McKenzie  v.  Hesketh,  L.  R.,  7 

(k)  Horsey  v.  Graham,  L.  R.,  5  C.  Ch.  D.  675;  47  L.  J.,  Ch.  231 ;  38  L. 

P.  191.  T.  171. 

145 


*90  AGREEMENT   FOR   LEASE.  [Cii.  IV.  S.  1. 

to  take,  with  acreage,  amounting  to  249  acres.  The  defend- 
ant's agent  desired  to  let  only  214  acres  with  his  farm,  but 
he  accepted  the  plaintiff's  offer  without  looking  at  the  acre- 
age, although  he  had  in  fact  let  one  of  the  closes  to  another 
person.  Another  tender  had  been  made  by  a  former  tenant 
for  the  same  farm,  as  comprising  235  acres,  and  the  defend- 
ant's agent  admitted  that  he  thought  that  the  plaintiff  had 
tendered  for  the  same  quantity  as  such  former  tender.  The 
plaintiff  sued  for  specific  performance,  but  was  willing  to 
take  a  lease  of  214  acres  at  a  proportionately  reduced  rent, 
and  Fr}",  J.,  held  that  the  defendant  was  bound  to  grant  a 
lease  of  214  acres,  at  a  rent  reduced  from  5001.  in  the  pro- 
portion of  214  to  235  (p). 

Defective  title.  —  If  a  party  having  title  to  a  part  only 
agrees  to  let  a  whole  propert}',  he  will  decree  to  let  that  part 
to  which  he  has  title,  with  an  abatement  of  rent  (5'). 

Writing  must  state  the  term  to  be  granted.  —  The  writing 
must  state  the  term  to  be  granted  Q''),^  and  particularly  the 
time  from  which  the  term  is  to  commence  (s)  ;  but  it  will  be 
sufficient  if  such  time  can  be  inferred,  as  for  instance,  if  a 
day  be  fixed  for  the  payment  of  a  first  rent  (^).  It  seems, 
too,  that  the  court  will  execute  an  agreement  to  grant  a 
lease  for  three  lives  unnamed  (u). 

(7)  Bnrrow  v.  Scammell,  L.  R.,  19  R.,  6  Ch.  I).  153;  in  which  an  agree- 

Ch.  D.  175 ;  51  L.  J.,  Ch,  296  ;  45  L.  ment  to  let  for  a  term  not  specifying 

T.  606  ;  80  W.  R.  310.  the  date  of  commencement  was  held 

(?•)  Bayley,  Bart.  v.  Fitzmaurice  by  Fry,  J.,  to  be  a  valid  agreement  to 
(in  error),  8  E.  &  B.  664;  9  H.  L.  let  for  a  term  commencing  on  the 
Cas.  78;  Clinan  v.  Cooke,  1  Sch.  &  date  of  tlie  agreement;  Cox  r.  Mid- 
Lef.  22;  Cordon  v.  Trevelyan,  1  dleton,  2  Drew.  209 ;  Ilersey  v.  Gib- 
Price,  64 ;  Hughes  r.  Parker,  8  M.  &  lett,  18  Bcav.  174 ;  Clarke,  app., 
W.  244  ;  1  Dowl.,  N.  S.  80;  Clarke,  Fuller,  resp. ;  and  Dolling  v.  Evans, 
app.,  Fuller,  rc-^p.,  16  C.  B.,  N.  S.  24;  supra.  And  sec  Nesliem  v.  Selhy,  L. 
Baumann  v.  James,  L.  R.,  ?,  Ch.  Ap.  R.,  7  Ch.  406;  Cartwright  v.  Miller, 
508  ;  Dolling  v.  Evans,  .36  L.  J.,  Ch.  36  L.  T.  398. 
474  ;  15  W.  R.  394.  (0  See  Wesley  v.  Walker,  38  L.  T. 

(«')  Marshall  v.  Berridge.  L.  R.,  19  284,  per  Fry,  J. 

Cli.   D.  233    (C.   A.)  ;    30  W.  R.  93,  (u)  Fitzgerald  v.  Vicars,  2  Dru.  & 

affirming  Blore  i-.  Sutton,  3  Mer.  237  ;  W.  298 ;  Dart  V.  &  I'.  661. 
and    overruling  Jaqucs   r.  Millar,  L. 

>  Tlodgos  I'.  Hownrd.  5  R.  T.  119.  158  (per  Ames,  C  J.)  ;  Abecl  i'.  Radcliff, 
13  Johns.  (N.  Y.)  297,  300,  301 ;  Myers  r.  Forbes,  24  Md.  598. 

146 


Ch.  IV.  S.  1]      AGREEMENT   MUST   BE   IN   WRITING.  *91 

Agreement  not  to  disturb  tenant.  —  An  agreement  by  a 
lessee  to  grant  a  snblease  (not  describing  it  as  a  sublease^  to 
an  intending  tenant  at  any  period  be  might  feel  disposed 
"and  not  to  molest,  disturb,  or  raise  the  rent"  of  the  intend- 
ing tenant  after  he  had  laid  out  money  on  the  premises,  was 
held,  by  the  Court  of  Appeal,  to  entitle  the  intending  tenant 
to  a  sublease  for  the  residue  of  the  term  of  the  lessee,  if  the 
intending  tenant  should  so  long  live  (2:)  ;  but  it  has 
been  held,  also,  that  a  somewhat  similar  *  agreement  [*91] 
is  merely  personal  between  the  parties,  and  does  not 
bind  a  subsequent  purchaser  of  the  landlord's  interest,  with 
or  without  notice  (?/). 

Rent.  —  The  writing  must  also  state  the  premium  or  fine 
(if  any)  agreed  to  be  paid  (2),  and  the  rent  to  be  paid  («),■' 

(r)  Kusel  v.  Watson,  L.  R.,  11  Ch.  (z)  Martin  v.  Pycroft,  2  De  Gex, 

J).  129;  48  L.  J.,  Ch.  iVi;  27  W.  R.  M.  &  G.  785;  Wood  v.  Scarth,  2  K.  & 

714,  C.  A.     Compare  Wood  v.  Davis,  J.  33  ;  Clifford  v.  Turrell,  1   You.   & 

6  L.  R.,  Ir.  50,  post,  Ch.  V.,  Sect.  6.  Coll.  C.  C.  138;  Blagden  v.  Bradbear, 

"  Construing    this     agreement,"    ob-  12  Ves.  466 ;  Elmore  v.  Kingscote,  6 

served    Bramwell,    L.   J.,    "  is    mere  B.  &  C.  583. 
guess  work."  (n)  Woolam  v.  ITearn,  7  Ves.  211 ; 

(y)  Roberts  v.  Tregaskis,  38  L.  T.  Gregory    v.    Mighell,    18    Ves.    328 

176,  decided  shortly  before,  but  not  (agreement  for  fair  annual  rent  to  be 

cited    in     Kuset    v.    Watson,     from  settled  by  arbitration,  held  sufficient) ; 

which,  however,  it  seems  to  be  dis-  Powell  v.  Lovegrove,  8  Ue  Gex,  M. 

tinguishable.  &  G.  80. 

^  Rent  must  be  definitely  fixed.  —  Abeel  v.  Radcliff,  13  Johns.  (N.  Y.) 

297,  300,  301  (per  Van  Ness,  J.)  ;  Robinson  v.  Kettletas,  4  Edw.  Ch.  (N.  Y.) 
67,  69 ;  Pray  v.  Clark,  113  Mass.  283  (agreement  for  "  rent  to  be  propor- 
tioned to  valuation  of  said  premises  at  said  time,"  but  with  no  way  provided 
for  fixing  valuation  held  insufficient) ;  Morrison  v.  Rossignol,  5  Cal.  64  (rent 
to  be  according  to  value  of  property  insufficient)  ;  Hopkins  v.  Oilman,  22 
Wis.  476  (rent  to  be  determined  by  arbitration  insufficient  for  specific  per- 
formance, but  injunction  granted  restraining  landlord  from  taking  possession)  ; 
Kelso  V.  Kelly,  1  Daly  (N.  Y.  Superior  Ct.)  419  (rent  to  be  fixed  by  arbi- 
trators, and  court  referred  to  referees  to  fix  it). 

These  last  two  cases  are  consistent  with  Powell  v.  Lovegrove  (cited  by 
the  author),  and  show  that,  though  courts  will  not  specificalh'  enforce  agree- 
ments to  submit  to  arbitration  (Noyes  v.  Marsh,  123  Mass.  286 ;  Pearl  v. 
Harris,  121  Id.  390;  Tobey  v.  Bristol,  3  Story,  800),  they  can  find  a  way 
to  enforce  the  contract.  How  far  they  will  be  followed  in  other  American 
courts,  quare. 

A  contract  for  sale,  providing  that  the  purchase  money  shall  be  paid  "  on 
such  terms  as  may  be  agreed  upon  between  said  parties,"  is  too  indefinite  for 
enforcement.     Huff  v.  Shepard,  58  Mo.  242. 

147 


*91  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  1. 

and  should  also,  though  this  is  not  absolutely  essential,  state 
whether  the  rent  is  to  be  paid  quarterly  (5),  half-yearl}'  or 
otherwise.  If  there  be  no  stipulation  on  that  point,  it  will 
be  payable  only  at  the  end  of  each  year  of  the  term  (c). 

Special  covenants.  —  Any  special  or  unusual  covenants  or 
stipulations  actually  agreed  on  should  be  stated  (c?),  and 
accurately  expressed  (e).  If  the  tenant  agrees  to  improve 
the  premises,  the  particulars  of  what  he  is  to  do  (being  a 
material  part  of  the  contract)  must  be  sufficiently  specified, 
so  that  a  proper  covenant  may  be  inserted  in  the  lease; 
otherwise  the  contract  will  be  too  uncertain  to  be  specifically 
enforced  (/).  An  agreement,  however,  for  the  tenant  to  do 
certain  specified  works  and  "  other  works "  upon  the  prop- 
erty, estimated  at  from  150?.  to  200?.,  was  held  not  too 
uncertain  to  prevent  a  decree  for  specific  performance,  inas- 
much as  the  specified  works  would  cost  nearly  that  sum  Qg). 
Vagueness  in  the  language  of  an  agreement  may  sometimes 
be  cured  by  evidence  of  the  surrounding  circumstances,  and 
of  the  subsequent  conduct  of  the  parties  (A).  Sometimes  an 
"  &c."  will  not  render  the  contract  too  uncertain  to  be  spe- 
cifically enforced  (i)  ;  but  if  the  construction  of  the  agree- 
ment depends  on  the  meaning  of  an  "&c.,"  the  court  can 
make  no  decree  (¥). 

It  seems  that  the  common  and  usual  covenants  and  pro- 
visos need  not  be  mentioned  (l).  They  are  implied  as  part 
of  the  contract,  and  may  be  added  at  chambers. 

(6)  Pillins  V.  Armitage,  12  Ves.  78.  (i)  Parker  v.  Taswell,  2  De  G.  &  J. 

(c)  Cooinber   v.  Howard,  1    C.    B.  559;    27   L.  J.,  Ch.  812;    Cooper    v. 

440;  Collett  r.  Curling,  10  Q.  B.  785;  Hood,  20  Bcav.  299  ;  Powell  v.  Love- 

Giraud  v.  Richmond,  2  C.  B.  8.']5.  grove,  8  De  Gex,  M.  &  G.  857. 

(J)  Fry,  ss.  221,  222;  Brodie  r.  St.  {k)  Price  v.  Griffitii,  1   De  Gex,  M. 

Paul,  1  Ves.  jun.  820.  &  G.  80 ;  and  see  Tatham  r.  Piatt,  9 

(e)  Doe    (/.    Marquis    of    Bute    t-.  Hare,   (iOO ;    Stuart    v.   London    and 

Guest,  Bart.,  15  M.  &  W.  100  ;  Doe  North  Western  R.  Co.,  1  De  Gex,  M. 

d.  Marquis  of  Bute  v.  Thompson,  13  &  G.  721. 

M.  &  W.  494.  (0  Fry,  ss.  225,  227  ;    Ricketts   v. 

(/)  Gardner   v.   Fooks,   15  W.  R.  Bell,  1  De  Gex  &  Sm.  335;  Cosser  i-. 

888",  M.  R.  CoUinge,  3  Myl.  &  K.  283;  Smith  v. 

((/)  Baumann   v.   James,    L.    R.,  3  Capron,    7    Hare,    185;     Church    v. 

Ch.  Ap.  508.  Brown,  15  Ves.  at  p.  205.     See  fur- 

(/()  Oxford  V.  Provard,  L.  R.,  2  ]*.  ther  as  to  "  Usual  Covenants,"  Sect. 

C.  C.  135;  Conpland  r.  Arrowsmith,  1 ,  post. 
18  L.  T.  76 

148 


Cu.  IV.  S.  1.]      AGREEIVIENT   MUST   BE   IN    WAITING.  *92 


*  (b)  How  Agreements  may  he  signed.  [*92] 

Signature.  — ;  All  agreement  for  a  lease  must,  by  virtue 
of  the  4th  section  of  the  Statute  of  Frauds  above  referred 
to,  be  signed  hy  the  party  to  he  charged  therewith,^  or  his 
agent  thereunto  lawfully  authorized.  It  need  not  be  signed 
by  both  parties  (w).^  The  signature  to  a  contract  may 
be  in  almost  any  part  of  the  writing  (n) :  provided  it  is 
so  placed  as  to  govern  and  authenticate  every  material  and 
operative  part  of  the  instrument ;  but  not  where  it  applies 
only  to  the  particular  part  where  it  is  introduced  (o).  A 
signature  in  pencil  (j^*),^  or  by  initials  Qq^,  or  by  print  (r), 

(m)  Boys  v.  Ayerst,  6  Madd.  323 ;  (o)  Caton  v.  Caton,  L.  R.,  2  II.  L. 

Seton  V.  Slade,  7  Ves.  26-5;  Laythorp  Cas.  127 ;  36  L.  J.,  Ch.  886. 
V.  Bryant,  2  Bing.  N.  C.  735.  (/>)  Lucas  v.  James,  7  Hare,  410. 

(h)  Fry,  ss.  347,  348,  340;  Propert  (7)  Selby  v.  Selby,  3  Mer.  2;  Sug. 

1-.  Parker,  1  Russ.  &  Myl.  625 ;  Bleak-  V.  &  P.,  Chap.  III.,  Sect.  4. 
ley  V.  Saiith,  11  Sim.  150.  (;)  Sclieider  v. Norris, 2  M.  & S. 286. 

1  Jacobs  V.  P.  &  S.  R.  R.  Co.,  8  Cush.  (Mass.)  223. 

2  Mutuality,  &c.  ;  signature  by  one  party. — Douglass  v.  Spears,  2 
Nott  &  M'Cord  (S.  C.)  207;  Penniman  v.  Hartshorn,  13  Mass.  87;  Barstow 
V.  Gray,  3  Greenl.  (Me.)  400;  Ballard  v.  Walker,  3  Johns.  Cas.  (N.  Y.)  60; 
Roget  V.  Merritt,  2  Caines  (N.  Y.)  117  ;  Clason  v.  Bailey,  14  Johns.  (N.  Y.) 
484,  487  {per  Kent,  Chan.) ;  M'Crea  v.  Purmort,  16  Wend.  (N.  Y.)  460;  Lan- 
ing  V.  Cole,  4  N.  J.  Eq.  220 ;  Old  Colony  R.  R.  Co.  v.  Evans,  6  Gray  (Mass.) 
25.  But  see  Geiger  v.  Green,  4  Gill  (Md.)  472 ;  German  v.  Machin,  6  Paige 
(N.  Y.)  292;  Boucher  r.  Van  Buskirk,  2  A.  K.  Marsh.  (Ky.)  346;  Benedict 
V.  Lynch,  1  Johns.  Ch.  370,  373,  374.  In  Benedict  v.  Lynch,  supra,  Chancellor 
Kent  expressed  opposite  views  to  those  subsequently  expressed  by  him  in 
Clason  V.  Bailey,  supra,  saying  that  by  the  weight  of  authorit}'  contracts 
signed  by  only  one  party  were  not  enforceable  by  the  other,  since  the  obliga- 
tion was  not  mutual. 

The  rule  is  now,  however  (as  said  by  him  in  Clason  v.  Bailey),  well 
settled  that  covenants,  whether  based  upon  covenants  or  optional  conditions, 
are  equally  binding  when  the  covenants  and  conditions  have  been  performed. 
Matter  of  Jane  Hunter,  1  Edw.  Ch.  (N.  Y.)  1,  5;  Frue  v.  Houghton,  6  Col. 
318,  324  ;  Cutting  v.  Dana,  25  N.  J.  Eq.  265. 

Vice-Chan.  McCoun  said,  in  Matter  of  Jane  Hunter,  supra,  "The  court 
may  therefore  in  a  proper  case,  where  there  is  a  covenant  on  one  side  and  no 
mutuality,  decree  a  performance";  and  Beck,  C.  J.,  in  Frue  v.  Houghton, 
said,  "  The  promisee  in  many  instances  not  being  bound  at  all.  .  .  .  Upon 
performance  of  the  condition,  however,  the  contract  is  said  to  become  abso- 
lute and  mutual  in  its  obligations." 

3  Signature  with  lead  pencil  sufficient.  Clason  v.  Bailey,  14  Johns.  (N.  Y.) 
484. 

149 


*92  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  1. 

seems  to  be  sufficient,  and  so  does  the  signature  of  a  marks- 
man (s). 

Signature  by  agent.  —  A  signature  by  an  agent,  thereunto 
"Lawfully  authorized,"  is  sufficient,  by  the  very  terms  of  the 
4th  section  of  the  Statute  of  Frauds,^  and  such  authority 
need  not  be  in  writing  (<).  But  the  authority  of  the  agent 
to  sign  such  contract  must  be  proved,  if  disputed  (w).  Such 
authority  is  revoked  by  the  death  of  the  principal,  although 
the  agent  does  not  know  of  the  death  (2;).  Proof  of  a  sub- 
sequent ratification  will  be  sufficient  evidence  of  a  prior 
authority  (i/).  On  the  other  hand,  an  oral  revocation  of 
any  such  authority  may  be  proved  (z)  :  unless  the  agent 
was  appointed  by  deed;   and  perhaps  even  then  (a).     An 


(s)  See  Baker  v.  Dening,  8  A.  &  E.  24,  3G ;  Baines  v.  Ewing,  35  L.  J.,  Ex. 

94.  194. 

(0  Coles  I'.  Trecothick,  9  Ves.  2o4,  (x)  Carr  v.  Levingston,  35   Beav. 

250 ;  Clinan  v.  Cooke,  1   Sch.  &  Lef.  41. 

22;    Dyas  v.   Cruise,  2  Jon.   &   Lat.  (//)  Fry,  s.  355;  Maclean  v.  Dunn, 

461 ;    Heard   v.   Pilley,  L.  R.,  4  Ch.  4  Bing.  722 ;  Ridgway  v.  Wharton,  G 

Ap.  548;  Smith  L.  &  T.  82,  93  (2nd  H.  L.  Cas.  238,  29(5;  Bayley,  Bart.  v. 

ed.).  Fitzmaurice,  8  E.  &  B.  664;  9  H.  L. 

(«)  Blore  V.  Sutton,  3    Mer.  237 ;  Cas.  78. 

Ridgway  r.  Wharton,  3  De  Gex,  M.  (2)  Manser  v.  Back,  6  Hare,  443 ; 

&  G.  677;  27  L.  J.,  Ch.  46;  6  H.  L.  Rex  v.  Wait,  11  Price,  508;  Venning 

Cas.  238;  Firth  v.  Greenwood,  1  Jur.,  v.  Bray,  2  B.  &  S.  502  ;   31  I,.  J.,  Q. 

N.  S.  866  ;  Forster  v.  Rowland,  7  H.  B.  181. 

&  N.  103;  30  L.  J.,  Ex.  396;  Clarke,  (a)  Venning  v.  Bray,  supra. 
app.,  Fuller,  resp.,  16  C.  B.,  N.  S. 

1  Agency  for  both  parties;  signature.  —  And  the  same  agent  may  act 
for  botli  parties ;  as  tor  example,  a  broker  may  sign  for  hotli  parties  in  their 
presence  a  contract  for  the  sale  of  goods,  Clason  v.  Bailey,  14  Johns.  (N.  Y.) 
484;  and  an  auctioneer,  as  agent  for  botli  buyer  and  seller,  lias  imi)lied  au- 
thority to  write  the  bidder's  name  upon  tiie  memorandum  of  sale  ;  and  if 
the  memorandum  contains  all  the  essential  terms  of  tlie  contract,  it  satisfies 
tlie  statute.  Gill  v.  Bicknell,  2  Cush.  (Mass.)  .^S,  358,  359  {per  Shaw,  C.  J.)  ; 
Cleaves  1;.  Foss,  4  Grcenl.  (Me.)  1;  Inlibts.  of  Alna  v.  Plummer,  4  Id.  258; 
M'Comb  V.  Wriglit,  4  Jolms.  Ch.  (N.  Y.)  659;  Gordon  v.  Sims,  2  M'Cord's 
Cii.  (S.C.)  151, 157,  164,  165  (holding  that  tlie  auctioneer's  memorandum  may 
be  made  on  loose  paper,  and  if  lost,  its  contents  may  be  proved  by  parol). 

If  auctioneer's  memorandum  does  not  contain  essential  terms,  it  is  insuf- 
ficient. Morton  i-.  Dean,  ]'.)  Met.  (Mass.)  385,  388.  Tiie  above  cases  also 
decide  that  the  agent's  authority  need  not  be  in  writing. 

"Whoever  bids  does  in  elTect  autiiorize  the  au(!tioneer  to  sij^n  his  name, 
if  no  otiicr  person  bids  a  higher  sum"  (per  Weston,  J.,  in  Cleaves  v.  Foss, 
sujird,  J).  lOj. 

150 


Cii.  IV.  S.  1.]      AGREEMENT   MUST   BE   LN    WRITING.  *93 

agent  who  contracts  in  his  own  name  may  sometimes   he 
compelled  specifically  to  perform  the  contract  (J).^ 

Defects  supplied  by  subsequent  ■writing.  —  An  agreement, 
note  or'  memorandum,  which  is  defective  in  some  or  one 
of  the  ahove  particulars,  may  sometimes  be  perfected  by  a 
prior  (e)  or  subsequent  letter  or  other  writing,  which  suf- 
ficientl}^  is  referred  to  or  refers  to  it,  and  supplies  the 
defect  (fZ).  But  where  the  plaintiff  in  a  suit  for  specific 
performance  put  in  two  letters  of  the  defendant,  the 
*  first  showing  all  the  terms  of  the  proposed  agree-  [*93] 
ment  for  a  lease  but  omitting  the  date  at  which  the 
occupation  was  to  commence,  and  the  second  referring  to  the 
first  as  applying  to  a  term  to  begin  from  "  Michaelmas  next," 
but  adding  several  terms  to  which  the  plaintiff  did  not  assent, 
the  court  refused  specific  performance,  although  there  was 
undisputed  evidence  that  a  complete  verbal  agreement  had 
beeu  made  on  the  terms  of  the  first  letter,  with  the  additional 
term  of  "jNIichaelmas  next,"  and  James,  L.  J.,  observed  that 
the  court  "  had  gone  quite  far  enough  in  enforcing  specific 
performances  upon  the  evidence  of  letters  when  one  party  is 
bound  and  the  other  not "  (e).  Generally  speaking  parol 
evidence  is  inadmissible  to  connect  two  writings  which  do 
not  of  themselves  sufficiently  refer  to  each  other  (/)  ;  but 
sometimes  it  may  be  admitted  to  negative  the  existence  of 
any  other  writings  on  the  subject,  from  which  their  relation 
to  each  other  may  be  inferred  (^).  Sometimes  when  a 
defective  writing  cannot  be  perfected  in  this  manner,  it  may 
be  taken  out  of  the  operation  of  the  Statute  of  Frauds  by 
a  sufficient  part  performance  (li).    The  existence  of  a  signed 

(6)  Saxon  v.  Blake,  29  Beav.  438.  Dobell  v.  Hutchinson,  .3  A.  &  E.  355; 

(c)  Baumann    v.  James,   L.    R.,  3  Kennedy  v.  Lee,  8  Meriv.  441. 

Ch.  App.  508;    here  the  acceptance  (e)  Nesham  v.  Selby,  41  L.  J.,  Ch. 

was    "at    rent     and     terms     agreed  551;  L.  R.,  7  Ch.  406. 

upon."  '(./")  Skelton  v.  Cole,  1  De  Gex  &  J. 

(c?)  Warner  v.  Willington,  3  Drew.  587;  Clinan  v.  Cooke,  1  Sch.  & Lef. 22. 

523;  25  L.  J.,  Ch.  GG2 ;    Ridgway  v.  (g)  Baumann   v.   James,    L.    R.,  3 

Wharton,  6   H.  L.  Cas.  238;   3   De  Ch.  Ap.  508  ;  16  W.  R.  877. 

Gex,  M.  &  G.  677  ;  27  L.  J.,  Ch.  46;  (A)  Post,  Sect.  4  (a),  p.  100. 

^  As  it  will  be  against  one  bidding  for  another  at  an  auction,  and  not  dis- 
closing that  fact.     M'Comb  v.  Wriglit,  4  Johns.  Ch.  (N.  Y.)  659. 

151 


*94  AGREEHrENT   FOR  LEASE.  [Ch.  IV.  S.  1. 

but  incomplete  agreement  is  no  obstacle  in  the  way  of  prov- 
ing tlie  additional  terms  by  parol  where  there  has  been  a 
part  performance  ;  for  the  whole  might  have  been  proved  by 
parol  (.'■). 

Effect  of  subsequent  alterations  by  parol.  —  On  the  other 
hand,  where  there  is  a  sufficient  writing  to  satisfy  the  statute, 
but  some  of  the  terms  of  it  are  altered  afterwards  hi/  parol,  a 
specific  performance  of  the  agreement  as  altered  will  not  be 
decreed  (A^).^  The  reason  is,  that  contracts  within  the  4th 
section  of  the  Statute  of  Frauds  must  be  wholly  proved  by 
writing  (Z).  To  allow  such  a  contract  to  be  proved  partly 
by  writing  and  partly  by  oral  testimony,  would  let  in  all 
the  mischiefs  which  it  was  the  object  of  the  statute  to  ex- 
clude (??z).  But  if  the  new  terms  were  merely  intended  to 
modify  the  original  agreement,  and  were  inoperative  for  that 
purpose,  it  seems  that  a  specific  performance  of  the  original 
agreement  may  be  decreed  (w).  Where  a  plaintiff  alleges 
a  written  agreement,  with  the  parol  variation  in  favour  of 

the  defendant,  and  offers  to  perform  the  agreement 
[*94]     with  *  the  variation,  the  court  will  enforce  specific 

performance,  although  the  defendant  insists  on  the 
statute  (o).  In  such  case  the  court  will  decree  specific  per- 
formance with  the  variations,  if  the  defendant  elect  to  take 
advantage  of  them ;  or  otherwise  of  the  original  agree- 
ment (p).     It  is  to  be  observed,  that  the  Statute  of  Frauds 

(0  Sutherland  v.  Briggs,  1  Hare,  61;  Stowell  v.  Robinson,  3  Bing.  N. 

26,  35  ;   Powell   v.  Lovegrove,  8  De  C.  928. 

Gex,  M.  &  G.  3.')?  ;  Morphett  v.  Jones,  (w)  Stead  v.  Dawbcr,  10  A.  &  E.  67 

1  Swans.  172';  Fry,  s.  420;  see,  too,  (n)  Price   v.    Dyer,    17   Ves.   366 

Stewart  v.   Eddowes,  L.  R.,  9  C.   P.  O'Connor  v.  Spaiglit,  1  Sch.  &  Lef 

311,  where  parol  evidence  was  held  305;  Stead  ;;.  Dawbcr,  10  A.  &  E.  67 ; 

admissible  to  show  that  certain  inter-  Marshall  v.    Lynn,  (5  M.  &  W.   109 

lineations  had  been  assented  to.  Moore    v.  Campbell,   10    Exch.   323; 

(k)  .Jordan  v.  Sawking,  1  Ves.  jun.  Noble  v.  Ward,  L.  R.,  1  Ex.  117;  36 

402 ;  3  Bro.  C.  C.  388  ;  Price  v.  Salus-  L.  .J.,  Ex.  81  ;  but  see  Clarke  v.  Moore, 

bury,  .32  Heav.  446  ;  32  L.  .1.,  Ch.  441 ;  1  .Jon.  &  Eat.  723-729;  Fry,  ss.  686, 

affirmed  Dom.  Proc,  14  L.  T.  110.  690. 

(/)  Foquet  V.  Moor,  7  Exch.  1870;  (o)  Martin  v.  Pycroft,  2  De  Gex,  M. 

Goss  r.  Ivord   Nugent,  6  B.  &  Adol.  &  G.  785;  Dart  V.  &  P.  603,  (;()6. 
58;  Ilarvey  v.   Grabham,  6  A.  &  E.  (/))  Robinson  i;.  Page,  3  Russ.  114; 

Dart  V.  &  P.  728. 

1  Brooks  I'.  Wheelock,  11  Pick.  (Mass.)  439. 

152 


Ch.  IV.  S.  3.]   REMEDIES  FOR  BREACH  OF  AGREEMENT.    *94 

does  not  say  in  distinct  terms  that  all  contracts  or  agree- 
ments concerning  the  sale  of  lands  shall  be  in  writing ;  all 
that  it  enacts  is,  that  no  action  shall  be  brought  unless  they 
are  in  writing ;  and  as  there  is  no  clause  in  the  act  which 
requires  the  dissolution  of  such  contracts  to  be  in  writing, 
it  should  seem  that  a  written  contract  concerning  the  sale  of 
lands  may  still  be  waived  and  abandoned  by  a  new  agree- 
ment not  in  writing,  and  so  as  to  prevent  either  party  from 
recovering  on  the  contract  which  was  in  writing  (fi). 


Sect.  2. —  Tlce  Stamping  of  the  Agreement  for  a  Lease. 

It  is  material  to  observe  that  the  Stamp  Act,  1870,  which 
is  a  consolidating  act,  imposes  the  same  stamp  upon  an 
agreement  for  a  lease  as  it  imposes  upon  a  lease  itself  (ex- 
cept in  the  case  where  the  term  exceeds  35  years),  and 
imposes  upon  a  lease  made  in  conformity  with  an  agreement 
duly  stamped,  the  duty  of  sixpence  only  (r). 

It  seems  that  a  written  proposal  accepted  orally  need  not 
be  stamped  as  an  agreement  (s).  But  it  is  otherwise  with 
respect  to  a  document  signed  by  one  party  only,  but  intended 
either  as  a  contract,  or  as  evidence  of  a  contract,  and  not 
as  a  mere  proposal  (t).  When  an  oral  proposal  is  accepted 
in  writing,  such  acceptance  must  be  stamped  as  an  agree- 
ment (u). 

Sect.  3.  —  Remedies  for  Breach  of  Agreement. 

Lease  or  agreement.  —  Questions  frequently  arose  before 
the  passing  of  the  act  8  &  9  Vict.  c.  124,  whether  a  particu- 

(f/)  Goss  V.  Lord   Nugent,  5  B.   &  v.  Brine,  1  M.  &  G.  359 ;  Vollans  v. 

Adol.    64;     but     see    Carrington    v.  Fletcher,   1    Exch.  20;    Hudspeth  v. 

Roots,   2   M.   &   W.   248;    Reade   v.  Yarnold,  9  C.  B.  625;  Smith  v.  Neale, 

Lamb,  6  Exch.    130;   2  L.,  M.  &  P.  2  C.  B.,  N.  S.  79;   Laing  v.  Smith,  3 

67.  F.  &  F.  97. 

(r)  33  &  34  Vict.  c.  97,  s.  96.     See  (0  Chanter  v.  Dickinson,   5   M.  & 

post.  Appendix  A.,  Sect.  7.     The  for-  G.  253;  2  Dowl.,  N.  S.  838;  Hegarty 

nier   law,    23    Vict.   c.    15,   excepted  v.  Milne,  14  C.  B.  627. 
leases  for  not  more  than  seven  years  (m)  Atherstone  v.  Bostock,  2  M.  & 

from  a  similar  provision.  G.  511;  Chanter  v.  Dickinson,  supra; 

(s)  Drant  v.  Brown,  3  B.  &  C.  665;  Hegarty  v.  Milne,  supra. 
Edgar  v.  Blick,  1  Stark.  464  ;  Vaughan 

153 


*95  AGREEMENT   FOE    LEASE.  [Ch.  IV.  S.  3. 

lar  instrument  is  to  be  construed  as  an  actual  lease  or  as  an 
agreement  for  a  lease.     A  few  of  the  numerous  cases 

[*95]  *upon  the  subject  will  be  noticed  presently  (a.-). 
The  general  result  of  them  may  be  taken  to  be  that 

the  intention  of  the  parties,  as  expressed  in  the  instrument, 

is  to  be  looked  to,^  and  that  where  a  document  cannot  by  law 

(x)  Chap,  v.,  Sect.  4,  post.  And  see  them  discussed  in  Davidson  on 
Conveyancing,  vol.  v.,  pt.  1,  pp.  1-16. 

^  Distinction  between  leases  and  agreements  for  leases.  —  "Where 
the  words  used  "  imply  an  immediate  demise,"  and  "  there  is  no  stipulation 
for  a  further  lease,"  and  "the  term,  the  rent,  and  the  manner  of  occupying 
.  .  .  are  all  explicitly  stated,  the  instrument  constitutes  a  lease."  Spencer, 
J.,  in  Thornton  v.  Payne,  5  Johns.  (N.  Y.)  74,  77.  Tliough  tlie  term  cona- 
mence  in  futuro,  yet  the  demise  may  operate  in  presenti.  Same  v.  Same; 
Bacon  r.  Bowdoin,  22  Pick.  (Mass.)  401. 

The  words  "hath  set  and  to  farm  let  unto  .  .  .  during  the  term  of  the 
natural  life,"  &c.,  create  a  present  demise,  even  though  the  instrument  contains 
covenant  for  further  lease.     Jackson  v.  Kisselbrack,  10  Johns.  (N.  Y.)  336. 

Tlie  words  "agree  to  lease"  create  a  present  demise,  where,  upon  the 
whole  instrument,  tliis  appears  to  have  been  the  intention  of  the  parties. 
HoUey  v.  Young,  66  Me.  520.  An  agreement  for  a  lease  will  he  construed  to 
be  a  lease  if  possession  is  taken,  and  no  future  formal  lease  is  contemplated. 
Jenkins  v.  Eldredge,  3  Story,  325.  Even  tiiough  the  instrument  contemplates 
a  future  more  formal  lease,  j'et  if  it  show  an  intention  to  create  a  present 
tenancy,  it  operates  as  a  present  demise.     Buckley  v.  Kusscll,  24  N.  B.  205. 

An  instrument  commencing  "  We,  the  undersigned,  agree  to  rent  or  lease," 
&c.,  constitutes  itself  a  lease  (wliether  possession  be  taken  under  it  or  not)  if 
it  contain  all  the  terms  of  a  demise,  "  and  tiiere  is  notliiiig  to  show  that  any 
more  formal  document  was  contemplated." 

Kabley  v.  Worcester  Gas  Liglit  Co.,  102  Mass.  392,  394. 

The  words  inserted  in  lease  for  term,  "  We  furtlier  agree  to  lease  to  said 
Young  said  premises  ...  at  the  price  and  conditions  named  as  long  as  he 
wishes  to  occupy  tlie  same,"  creates  a  demise  of  future  term  at  option  of 
lessee;  and  by  remaining  in  possession  after  expiration  of  present  demise,  he 
does  not  become  a  mere  tenant  at  sufferance.     Ilolley  v.  Young,  G(j  Me.  520. 

But  instruments  containing  words  of  present  demise  accomi)anied  with 
qualif^'ing  words  showing  a  contrary  intention,  do  not  oi)erate  as  present 
demises,  as,  for  example,  if  they  contain  an  agreement  for  taking  a  lease 
after  certain  improvements  have  been  made.  Jackson  i-.  Delacroix,  2  Wend. 
(N.  Y.)  433. 

Agreements  for  leases  have  been  held  to  constitute  leases  in  the  following, 
among  other  cases,  viz. :  Ilallett  v.  Wylie,  3  Jolms.  (N.  Y.)  47,  and  Jenkins 
V.  lOldredge,  3  Story,  .325,  330  (words  of  present  demise  with  possession)  ; 
Tliornton  v.  Payne,  5  Johns.  (N.  Y.)  74  (words  of  present  demise  without 
possession;  lield  that  lessee  could  maintain  suit  for  possession);  Bacon  i'. 
Bowdoin,  22  I'ick.  (Mass.)  401,  and  Weed  v.  Crocker,  13  Gray  (Mass.)  2iy 
(words  implying  a  present  demise  of  a  term  to  commence  in  futuro)  ;  Jack- 
son j;.  Kisselbrack,  10  Johns,  (N.  Y.)  336,  and  Buckley  v.  Russell,  24  N.  B. 

154 


Cii.  IV.  S.  3.]   REMEDIES  FOR  BREACH  OF  AGREEMENT.   *95 

operate  as  a  lease,  the  leaning  of  the  courts  is  to  construe  it, 
if  possible,  as  an  agreement  (?/). 

Two  remedies.  —  There  are  two  remedies  for  breach  of  a 
valid  contract  or  agreement  for  a  lease,  either  of  which,  but 
not  both,  may  generally  be  adopted  by  the  intended  landlord, 
or  by  the  intended  tenant,  as  the  case  may  require,  viz. :  — 
1.  An  action  to  recover  damages  for  the  breach  (z).  2.  An 
action  to  compel  a  specific  performance  of  the  agreement. 

An  intended  tenant  may,  in  an  action  for  damages,  recover 

(y)  Tidey  v.  MoUett,  16  C.  B.,  N.  992  ;  Kintrea  r.  Perston,  1   H.  &  N. 

S.  298.  357  ;  25  L.  J.,  Ex.  287 ;   Cocking  v. 

(_z)  By  Landlord,  &c.  — Bond   v.  Ward,  1  C.  B.  858;  BuUen  &  L.  PI. 

Rosling,  1  B.  &  S.  371;  30  L.  J.,  Q.  245-253  (3d  ed.).     By  Tenant,  &c. 

B.  227  ;  Foster  v.  Rowland,  7  H.  &  N.  —  Rollason  v.  Leon,  7  H.  &  N.  73 ;  31 

103;   30   L.  J.,  Ex.  396;    Collins   v.  L.  J.,  Ex.  96;  Hay  ward  v.  Parke,  16 

Willmott,  13  W.  R.  204  ;  De  Medina  C.  B.  295 ;  Jinks  v.  Edwards,  11  Exch. 

V.  Norman,  9  M.  &  W.  820  ;  2  D.  &  L.  775 ;  Hail  v.  Betty,  4  M.  &  G.  410. 
239 ;  Souter  v.  Drake,  5  B.  &  Adol. 

205,  209  (words  constituted  present  demise,  though  the  instruments  contained 
covenants  for  future  leases). 

In  the  following  cases  agreements  for  leases  have  been  held  not  to  con- 
stitute leases,  viz. :  People  v.  Gillis,  24  Wend.  (N.  Y.)  201  (because  there 
were  no  words  of  present  demise) ;  Jackson  v.  Delacroix,  2  Id.  433  (because 
the  words  of  present  demise  were  qualified  by  other  words,  showing  that  a 
present  demise  was  not  intended)  ;  Weld  v.  Traip,  14  Gray,  330  (because  the 
words  implied  the  making  of  a  future  lease)  ;  McGrath  v.  Boston,  103  Mass. 
369  (because  notwithstanding  present  possession  was  given,  the  contract 
showed  that  a  future  lease  was  intended). 

If  the  intended  lessee  in  fact  enters  upon  the  premises,  that  of  itself  is 
strong  presumptive  evidence  that  the  parties  intended  a  present  demise. 
Halk'tt  V.  Wylie,  3  Johns.  (N.  Y.)  44,  47,  48. 

Ordinarily,  possession  taken  and  payment  of  rent  under  an  agreement  for 
a  lease  creates  a  tenancy  for  the  stated  term.  Cheney  v.  Newberry,  07  Cal. 
125 ;  1  Washburn  on  Real  Prop.,  pp.  397,  398. 

If  a  party  construct  a  building  upon  the  land  of  another  under  an  agree- 
ment that  he  is  to  occu])y  it  until  the  rent  at  a  stated  price  shall  equal  the 
cost  of  the  building,  such  an  agreement  creates  a  tenancy  commencing 
immediately  upon  tiie  completion  of  the  building.  Billings  v.  Canney,  57 
Mich.  425. 

An  agreement  for  a  lease  upon  conditions  precedent  becomes  a  lease  in 
equity  after  the  performance  of  those  conditions.  Simmons  v.  Campbell,  17 
Ch.  (Ont.)  012,  617. 

The  law  recognizes  an  agreement  to  make  an  agreement  for  a  lease  as  a 
valid  contract ;  and  though  the  court  itself  cannot  directly  enforce  it,  j-et  it 
will  give  damages  against  a  party  refusing  to  perform  it.  Foster  v.  Wheeler, 
36  Ch.  D.  695,  697,  Kekewich,  J.,  saying,  "This  defence  rests,  I  think,  upon 
a  confusion,  not  by  any  means  imcommon,  between  enforcing  a  contract  and 
ordering  a  contract  to  be  specifically  enforced." 

155 


*96  AGREEMENT   FOE,   LEASE.  [Ch.  IV.  S.  3. 

back  any  premium  paid  by  him  (a).  Even  where  the  agree- 
ment is  verbal,  money  expended  by  an  intending  tenant  in 
pursuance  of  it,  ex.  gr.,  money  laid  out  upon  alteration  of 
the  premises  agreed  to  be  demised,  is  recoverable  as  upon  a 
failure  of  consideration  (5). 

Breach  by  lease  to  another  party ;  Ford  v.  Tiley.  —  If  the 
intending  landlord  disables  himself  from  granting  the  lease 
agreed  upon  by  making  an  actual  and  inconsistent  lease  to 
another  party  before  the  day  arrives  for  the  granting  of  the 
lease  agreed  upon,  he  may  be  sued  at  once  by  the  intending 
tenant  for  a  breach  of  contract  in  making  the  actual  lease  (c). 

Insufficiency  of  title.  —  At  common  law  the  intending  lessor, 
by  agreeing  to  grant  a  lease,  impliedly  contracted  that  he 
had  title  to  grant  the  lease,  and  if  he  had  not,  he  was  liable 
to  an  action  at  the  suit  of  the  intended  lessee  (r?),  although 
the  intended  lessee,  by  a  contract  for  sale  of  the  agreement, 
was  bound  by  no  implied  condition  that  the  intended  lessor 
had  title  (t;). 

Intended  lessee  may  not  call  for  title  ;  V.  &  P.  Act,  1874.  — 
By  the  Vendor  and  Purchaser  Act,  1874  (37  &  38  Vict.  c. 
78),  s.  2,  it  is  enacted  that  "  under  a  contract  to  grant  or 
assign  a  term  of  years,  whether  derived  or  to  be  derived  out 
of  a  freehold  or  leasehold  estate,  the  intended  lessee  or  assign 
shall  not  be  entitled  to  call  for  the  title  to  the  freehold,  &c.;" 
and  by  the  Conveyancing  Act,  1881  (44  &  45  Vict.  c.  41), 
"on  a  contract  to  grant  a  lease  for  a  term  of  years,  to  be 
derived  out  of  a  leasehold  interest,  Avith  a  leasehold  rever- 
sion, the  intended  lessee  shall  not  have  the  right  to 
[*96]  call  for  the  title  *to  the  leasehold  reversion."  These 
enactments  do  away  with  the  common  law  rule,  the 
first  applying  to  the  case  where  the  intended  landlord  is  a 


(n)  Wright  v.  Colls,  8  C.  B.  150;  soe,  too,  Frost  ?•.  Knifrht,  L.  R.,  7  Ex. 

19  L.  J.,  C.  P.  60.  111. 

(/))  Pulbrook  V.  Lawcs,  L.  R.,  1  Q.  (d)  Stranks  r.  St.  John,  L.  R.,  2  C. 

B.  n.  284  ;  45  L.  J.,  Q.  B.  17;  34  L.  P.  370  ;  30  L.  J.,  C.  P.  118;  10  L.  T. 

T.  05;  see  also  WorthiriKton  v.  War-  283;  15  W.  R.  078. 
rinpton,   8    C.    B.    134;    Rohinson    v.  («)  Kintrea  v.  Perston,  1  II.  &  N. 

Harman,  1  Ex.  850.  357  ;  25  L.  J.,  Ex.  287. 

(c)  Ford  V.  Tilcy,  0  B.  &  C.  325; 

156 


Cii.  IV.  S.  4.]     ACTION   FOR    SPECIFIC    PEEFOIIMANCE.  *96 

freeholder,  and  the  second  to  the  case  where  he  is  a  lease- 
hohler. 

Defences  to  action.  —  It  is  a  good  defence  to  an  action  for 
breach  of  an  agreement  to  let  premises  that  the  intending 
tenant  intended  to  use  them  for  a  purpose  forbidden  by  law, 
ex.  gr.,  for  the  delivery  of  lectures  in  contravention  of  the 
Blasphemy  Act  (/). 

In  what  court  action.  —  The  action  for  damages  may  be 
brought  in  any  division  of  the  High  Court,  but  if  it  be  tried 
before  a  judge  with  a  jury,  the  trial  will  be  had  before  a 
judge  of  the  Queen's  Bench  Division  ((/).  If  the  plaintiff 
claim  501.  or  less  as  damages,  the  action  may  be  brought  in 
the  County  Court  (7i). 


Sect.  4. —  The  Action  f 07-  Specific  Performance.^ 

In  what  court  action  for  specific  performance.  —  Actions  for 
the  specific  performance  of  contracts  for  leases  are  by  sect. 
34  of  the  Judicature  Act,  1873,  assigned  to  the  Chancery 
Division  of  the  High  Court.  If  a  defendant  claim  specific 
performance  by  way  of  counter-claim  in  an  action  brought 
in  a  division  other  than  the  Chancery  Division,  the  action 
will  probably  be  transferred  to  that  division  (z).  If  the 
value  of  the  property  agreed  to  be  demised  do  not  exceed 
500?.,  the  action  for  specific  performance  may  be  brought  in 
the  County  Court  (^). 

(/)  Cowan  V.  Milbourn,  L.  R.,  2  (?)  R.  S.  C,  Order  LI.     And  see 

Ex."  230;  oG  L.  J.,  Ex.  124.  Id.  App.  C,  Forms  of  Pleading,  No. 

(gr)  Judicature  Act,  1873,  ss.  29,  37;  24  ;  Hillman  v.  Mayliew,  L.  R.,  1  Ex. 

Warner  u.  Murdock,  L.  R.,  4  Ch.  D.  D.  132 ;  45  L.  J.,  Ex.  334 ;  34  L.  T. 

(C.  A.)  750.  256  ;  24  W.  R.  435. 

(h)  Clarke  v.  Fuller,  16  C.  B.,  N.  S.  (k)  County  Court  Act  of  18G5  (28 

24.  &  29  Vict.  c.  99)  ;  County  Court  Act 

1  Specific  performance ;  how  obtained.  —  In  some  of  the  American 
states  specific  performance  can  only  be  obtained  through  a  bill  in  equity,  or 
by  an  equitable  action. 

In  others,  parties  entitled  thereto  may  set  up  that  fact  as  a  defence  in 
ejectment,  and  obtain  a  decree  against  the  plaintiff  in  the  same  suit. 
Arguello  v.  Edinger,  10  Cal.  150,  160. 

In  cases  where  equitable  defences  may  be  made  in  suits  at  law,  a  covenant 
upon  which  one  is  entitled  to  a  decree  for  specific  performance  maj'  be  set  up 
as  a  defence  in  trespass.     M'Ginness  r.  Kennedy,  29  Q.  B.  (Ont.)  93,  97. 

157 


*97  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  4. 

Combination  of  damages  with  specific  performance ;  21  &  22 
Vict.  c.  27,  s.  2.  —  Damages  may  be  awarded  either  in  addition 
to  or  in  substitution  for  specific  performance.  For  by  the 
Judicature  Act,  s.  24,  sub-s.  7,  the  High  Court  has  power  to 
grant,  and  "shall  grant,"  either  absolutely  or  on  conditions, 
"  all  such  remedies  whatsoever  as  any  of  the  parties  "  to  a 
cause  may  appear  to  be  entitled  to  in  respect  of  any  and 
every  legal  or  equitable  claim  properly  brought  forward." 
Prior  to  this  act,  it  had  been  enacted  by  21  &  22  Vict.  c.  27, 
s.  2  (Lord  Cairns'  Act),  that  "  in  all  cases  in  which  the 
Court  of  Chancery  had  jurisdiction  to  entertain  an  applica- 
tion for  an  injunction  against  a  breach  of  an}^  covenant,  con- 
tract or  agreement,  or  against  the  commission  or  continuance 

of  any  wrongful  act  or  for  the  specific  performance 
[*97]     of  any  *  covenant,  contract  or  agreement,  it  should 

be  lawful  for  the  same  court,  if  it  should  think 
fit  (Z),  to  award  damages  to  the  party  injured,  either  in 
addition  to,  or  in  substitution  for,  such  injunction  or  specific 
performance  (w).  Under  this  act  it  was  held  that  a  court 
of  equity  could  give  damages  only  where  it  could  decree 
specific  performance  or  grant  an  injunction  (w),  and  that 
when  the  plaintiff  failed  to  establish  any  covenant,  contract 
or  agreement,  of  which  specific  performance  could  be  directed, 
the  court  had  no  jurisdiction  to  grant  relief  in  damages  (o),^ 

of  1867  (30  &  31  Vict.  c.  142),  ss.  9,  ccdure  Act,  1883,  40  &  47  Vict.  c.  49, 
33.  Tlic  latter  act  expressly  includes  but  the  jurisdiction  thereunder  is  still 
an  agreement  for  a  lease,  wliich  had  in  force  either  by  virtue  of  the  Judi- 
been  held  in  Wilcox  v.  Marshall,  L.  cature  Act  or  s.  5  of  the  act  itself. 
II.,  3  Eq.  270,  to  be  impliedly  included  Per  Bagallay,  L.  J.,  in  Sayers  v.  Coll- 
by  the  former  act  amongst  the  nuit-  yer,  54  L.  J.,  Ch.  1. 
ters  in  which  an  equitable  jurisdiction  («)  Ferguson  v.  Wilson,  L.  R.,  2 
was  given  to  county  courts.  Ch.  Ap.  77  ;  15  W.  R.  80. 

(/)  See  Durell  v.  Pritchard,  L.  R.,  (o)  Lewers  v.  Earl  of  Shaftesbury, 

1  Ch.  Ap.  244;  35  L.  J.,  Ch.  223.  L.  R.,  2  Eq.  270;    but  see   Howe  v. 

(m)  This  Act  is  repealed  hy  the  Hunt,  31  Beav.  420  ;  32  L.  J.,  Ch.  36. 
Statute  Law  Revision  and  Civil  I'ro- 

'  With  compensation.  —  As,  for  example,  wliere  one  covenants  to  con- 
vey with  release  of  dower,  but  cannot  procure  such  release,  the  court  w-ill 
decree  specific  performance  with  compensation  or  alternative  full  jjerform- 
ance.     Davis  r.  I'arker,  11  Allen  (Mass.)  94. 

^  Incomplete  remedies.  —  In  one  case  wliere  the  court  luhl  the  contract 
too  indefinite  to  grant  s{)ecifi<;  performance,  but  yet  the  lessor  was  in  fault, 
it  enjoined  the  lessor  from  taking  possession.     Hopkins  v.  Gilman,  22  Wis. 

168 


Cn.  IV.  S.  4.]       ACTION   FOR    SPECIFIC   TERFORMANCE.  *97 

but  the  terms  of  s.  24,  sub-s.  7  of  the  Judicature  Act  appear 
to  be  more  comprehensive ;  and  it  is  apprehended  that  in  a 
simple  case  the.  Queen's  Bench  Division  would  grant  specific 
performance  (p). 

Combination  of  damages  -with  specific  performance.  —  Where 
A.  agreed  to  grant  a  lease  to  B.  (who  was  to  enter  at  once 
and  expend  money  on  improvements),  with  a  proviso  that 
if  he  failed  within  three  months  to  grant  a  valid  lease  he 
would  repay  to  B.  the  amount  of  his  outlay,  and  from  and 
after  sucli  failure  B.  should  be  at  libert}^  to  quit,  and  the 
agreement  should  cease,  except  as  to  B.'s  right  to  payment, 
and  A .  was  unable  to  grant  a  lease  for  want  of  title :  it  was 
held,  that  B.  had  a  lien  on  A.'s  interest  in  the  premises  for 
his  outlay  and  costs  of  suit((7).  Where  the  defendant  could 
not  obtain  his  lessor's  consent  to  an  underlease,  except  upon 
payment  of  a  reasonable  and  extra  rent,  specific  performance 
was  decreed,  with  damages  to  be  assessed  against  him  in  the 
event  of  his  not  obtaining  such  consent  (r).  And  where  a 
tenant  for  life  agreed  to  grant  a  lease  for  three  lives,  but 
had  only  power  to  grant  one  for  his  own  life,  he  was  decreed 
to  perform  his  agreement  specifically  pro  tanto,  with  com- 
pensation for  the  difference  in  value  between  the  term  as 
granted  and  the  term  as  agreed  (s).  In  one  case,  the  court 
have  decreed  specific  performance  of  an  agreement  to  take 
a  lease,  but  refused  to  order  a  specific  performance  of  certain 
building  stipulations,  and  instead  thereof  directed  an  inquiry 
as  to  the  damages  (f).  But  the  rule  seems  to  have  been  that 
the  court  would  not,  in  addition  to  a  decree  for  specific  per- 
formance, award  damages  for  the  mere  non-performance  of 

(p)   See  Mostyn  v.  West  Mostyn,  G;  Turner  v.  Marriott,  L.  E.,  3  Eq. 

&c.  Co.,  L.  R.,  I'c.  P.  D.  145;  Gatli-  744. 

ercole   v.   Smith,  L.  R.,  7    Q.  B.  D.  (r)  Hilton  v.  Tipper,  18  L.  T.  G2G; 

626.  16  W.  R.  888. 

(q)  Middleton  v.  Magnay,  2   H.  &  (.s)  Leslie  v.  Cromelin,  2  Ir.  Eq.  R. 

M.  233;    12  W.  R.   706;    Hindlcy  t;.  134. 

Emery,  L.  R.,  1  Eq.  52 ;  35  L.  J.,  Ch.  (/)  Kay  i;.  Johnson,  2  II.  &  M.  118. 

476.  And  in  a  case  where  lessor  covenanted  to  renew  or  pay  for  improve- 
ments and  brought  ejectment,  the  renewal  covenant  being  indefinite,  the 
court  in  that  suit  enforced  tlie  lessee's  right  to  be  paid  for  the  improvements. 
Robinson  v.  Kettletas,  4  Edw.  Ch.  (N.  Y.)  67,  69. 

159 


*98  AGKEEMENT   FOR   LEASE.  [Ch.  IV.  S.  4. 

a  contract,  unless  special  damages  were  proved  (u).  Even 
before  21  &  22  Vict.  c.  27,  the  court  would  in  some  cases 
award  damages  for  want  of  a  literal  performance  of 
[*98]  one  *  term  of  a  contract  of  which  specific  perform- 
ance was  decreed  (a;).  Thus  it  would  award  com- 
pensation for  the  deterioration  of  the  estate  pending  the 
contract ;  and  in  so  doing  it  in  truth  gave  damages  to  the 
purchaser  for  the  loss  which  he  sustained  by  the  contract  not 
having  been  literally  performed  (^).^ 

Ground  of  decree.  —  Where  a  contract  in  writing  respect- 
ing real  property,  in  conformity  with  the  Statute  of  Frauds, 
was  entered  into  between  competent  parties,  and  was  more- 
over in  its  nature  and  circumstances  unobjectionable,  it  was 
as  much  of  course  for  a  court  of  equity  to  decree  a  specific 
performance  as  it  was  for  a  court  of  common  law  to  give 
damages  for  the  breach  of  such  a  contract  (2).  The  original 
and  sole  foundation  of  the  jurisdiction  to  decree  the  specific 
performance  of  contracts  was  simply  this :  that  an  award  of 
damages  at  law  would  not  give  a  party  the  compensation  to 
which  he  is  entitled,  that  is,  would  not  put  him  in  a  situation 
as  beneficial  to  him  as  if  the  agreement  were  specifically 
performed  (a).^ 

(li)  Chinnock    v.    Marchioness    of  153,  in  which    the   intending   tenant 

Ely,  2  H.  «&  M.  221 ;  o4  L.  J.,  Ch.  399.  recovered  damages  for  loss  of  profits 

(.r)  Aubin   v.   Holt,  2  K.   &  J.  GO,  on  trade  meant,  to  the  knowledge  of 

70;  Peacock  v.  Tenson,  11  Beav.  355;  the  intending  landlord,  to  be  carried 

Helling  v.  Lumley,  3    De   Gex  &  J.  on  upon  the  premises. 
493;  Phelps  v.  Prothero,  7  De  Gex,  (z)  Hall  v.  Warren,  9  Ves.  008. 

M.  &  G.  722.  («)  Id.  045;  Harnett  v.  Yeilding,  1 

(//)  Phelps  ?'.  Prothero,  stiprn.     See  Sch.  &  Lef.  553. 
also  Jaques  v.  Millar,  L.  11.,  0  Ch.  D. 

1  And,  on  the  other  hand,  under  exceptional  circumstances,  the  court  will 
decree  specific  performance  in  behalf  of  a  party  who  has  not  literally  per- 
formed the  contra(!t  himstdf.  Colton  v.  Kookledgc,  19  Chy.  (Unt.)  121; 
Hunt  T.  S])(Mici'r,  13  Id.  23"). 

-  Specific  performance  not  granted  if  damages  adequate  remedy. 
—  A  decree  for  specific  performance  will  not  be  made  in  any  case  where  dam- 
ages are  an  adequate  remedy.  Ashton  v.  Pryne,  19  Chy.  (Ont.)  56.  For 
examj)le:  ordinarily  an  agreement  to  take  a  lease  and  execute  improve- 
ments will  not  be  enforced.  Dickson  v.  Covert,  17  Chy.  (Ont.)  321.  Where, 
however,  a  lessee  has  taken  possession  and  made  changes,  &c.,  as  the  i)artiea 
cannot  be  restored  to  their  original  condition,  specific  performance  will  be 
decreed,  damages  not  being  an  adc(iuale  remedy.  Lawrence  v.  Saratoga  Lake 
II.  Co.,  30  Hun  (43  N.  Y.  Supreme  Ct.)  407. 

IGO 


Cii.  IV.  S.  4.]      ACTION    FOR    SPECIFIC    TERFORMANCE.  *98 

Of  tenancy  from  year  to  year,  &c.,  refused.  —  Tlie  jurisdic- 
tion of  tlie  court  to  grant  specific  performance  is  a  purely 
discretionary  one.^  It  seems  that  no  decree  will  be  made 
for  the  specific  performance  of  an  agreement  for  a  tenancy 
from  year  to  year,  the  remedy  in    damages    being   deemed 


^  May  be  granted  on  terms.  —  Willard  v.  Taylor,  8  Wall.  557  (it  may 
enforce  a  purchase  oj)ti()n  in  favor  of  lessee,  and  impose  terms  upon  him  if 
by  subsequent  changes  it  has  become  inequitable  to  carry  out  the  contract  as 
originally  made.  Thus,  it  may  require  purcliase  nu)ney  to  be  paid  in  coin, 
if  legal  tenders  have  depreciated  largely)  ;  Curran  v.  Holyoke  Water  Tower 
Co.,  11(5  Mass.  !)0. 

"When  granted;  -wrhen  refused. — The  court  will  not  grant  specific  per- 
formance if  inequitable.  McDonald  v.  Rose,  17  Chy.  (Out.)  657,  059.  It 
will  not  be  granted  if  tlie  act  of  renewing  will  be  a  nugatory  act.  Tobey  v. 
Bristol,  3  Story,  800,  824. 

The  court  will  not  compel  lessor  to  grant  lease  of  a  shop  not  belonging  to 
him,  Morris  v.  Kemp,  13  Uliy.  (Ont.)  487 ;  neitiier  will  it  compel  a  railroad 
company  to  give  an  ultra  vires  lease.  Carleton  Branch  Ry.  Co.  v.  The  Grand 
Southern  Ry.  Co.,  21  N.  B.  3.39,  367  (per  Allen,  C.  J.).  '  It  will  not  require 
trustees  who  have  contracted  without  knowledge  of  their  co-trustees,  to  give  a 
lease  (trustees  being  joint  tenants).    ]\IcKelvey  v.  Rourke,  15  Chy.  (Ont.)  380. 

The  court  will  not  compel  a  trustee  to  renew  a  lease  after  expiration  of 
his  trust.     Bergengren  v.  Aldrich,  139  Mass.  259. 

In  case  of  a  lease  made  in  P^ngland  under  a  power  to  lease,  the  court  will 
enforce  a  renewal  covenant  if,  at  the  time  renewal  is  asked  for,  the  rent 
reserved  is  the  best  rent ;  not  otherwise,  a  renewal  for  any  rent  less  than  the 
best  rent  being  ultra  vires.  Gas  Light  &  Coke  Co.  v.  Towse,  35  Ch.  D.  519. 
Specific  performance  will  not  be  decreed  if  it  is  optional  with  lessor  to  renew 
or  pay  for  improvements,  Hutchinson  r.  Boulton,  3  Chy.  (Ont.)  391 ;  nor  if 
material  changes  have  taken  place  in  the  premises  contrary  to  the  agreement, 
Dunn  V.  Howard,  1  Allen  (N.  B.)  015;  as  where  the  outgoing  tenant  had 
removed  gas  fittings,  the  use  of  which  the  incoming  tenant  was  to  have. 

Though  the  court  will  not  specifically  enforce  a  contract  in  favor  of  a 
party  who  has  forfeited  his  right  (as  by  ejecting  the  vendee  or  lessee),  yet  if 
he  bring  a  bill  for  specific  performance  or  rescission  against  the  infant  heir 
of  such  vendee  or  lessee,  the  co\n-t  will  order  a  reference ;  and  if  it  appear  to 
be  a  beneficial  contract,  will  order  it  performed  in  behalf  of  the  infant.  Far- 
quharson  v.  Williamson,  1  Chy.  (Ont.)  93. 

The  court  will  not  order  specific  performance  of  an  agreement  to  convey 
a  specific  thing  if  that  thing  have  been  subsequently  accidentally  destroyed 
(per  Gray,  J.,  in  Viterbo  v.  P'riedlander,  120  U.  S.  707,  712). 

The  court  in  decreeing  specific  performance  will  take  note  of  the  rights  of 
third  parties  wiiich  have  intervened,  and  qualify  its  decree  accordingly.  Cur- 
ran V.  Holyoke  Water  Power  Co.,  110  Mass.  90. 

An  intended  lessee  will  be  required  to  coinplete  his  contract,  notwithstand- 
ing the  acts  of  third  parties,  as  a  municipal  corporation,  in  building  a  bridge 
near  the  premises,  have  somewhat  injured  tlie  value  of  the  property.  Den- 
nison  v.  Kennedy,  7  Chy.  (Ont.)  342. 

161 


*99  AGREEMENT   FOR   LEASE,  [Ch.  IV.  S.  4. 

sufficient  (J)  ;  ^  nor  where  the  agreed  term  has  exj)ired  or 
will  expire  before  a  decree  can  be  obtained  (c)  ;  nor  where 
the  lease  is  to  be  granted  upon  certain  specified  buildings 
being  erected  within  a  limited  time,  which  has  nearly  elapsed, 
and  the  buildings  have  not  been  begun  ((Z). 

Instrument  void  as  lease,  but  good  as  agreement.  —  A  writ- 
ing purporting  to  be  a  lease  for  more  than  three  years,  which 
is  void  at  law  as  a  lease  because  not  by  deed  (e),  may  be 
good  in  equity  as  an  agreement  for  a  lease,  and  enforced  by 
a  decree  for  a  specific  performance,  with  costs  (/).  And 
although  such  contract  is  void  at  law  as  a  lease,  it  may  never- 
theless be  valid,  even  at  law,  as  an  agreement  for  a  lease, 
and  also  with  respect  to  any  express  stipulations  therein  con- 
tained so  as  to  support  an  action  for  breaches  of  such  stipu- 
lations (//).  And  the  law  would  probably  be  the 
[*99]  same  with  respect  to  any  *  stipulations  to  be  neces- 
sarily implied  from  the  terms  of  the  contract ;  but 
no  action  can  be  maintained  for  not  giving  possession  at  the 
time  appointed  for  the  commencement  of  the  term,  because 
possession  under  a  lease  for  a  certain  liumber  of  years  (^ex- 
ceeding three  years)  was  agreed  for,  and  not  a  possession 
as  tenant  from  year  to  year  upon  the  terms  of  the  intended 
lease  so  far  as  they  are  applicable  to  and  not  inconsistent 
with  a  yearly  tenancy  (A). 

"What   Complainant  should  consider.  —  Refore    commencing 

(6)  Clayton  i-.  Illin^wortb,  10  Hare,  (7)  Bond  v.  Roslin^,  1  B.  &  S.  371 : 

451;  Mortal    v.   Lyons,  8   Ir.  Ch.  R.  30  L.  J.,  Q.  B.  227;  Rollason  v.  Leon, 

112;    Fry,   s.   7;   Sug.   V.   &  P.  209  7  11.  &N.  73;  31  L.  J.,  Ex.  00 ;  Tidey 

(14th  ed.).  ,;.  Mollett,  10  C.  B.,  N.  vS.  208;  33  L. 

(r)  Nesbit  I'.  Meyer,  1  Swans.  226;  J.,  C.  P.  235;    Ilayne  v.  Cumnuntrs, 

Walters  u.  Northern  Coal  Mininjj  Co.,  10  C.  B.,  N.  S.  421  ;  Hunt  v.  Harris, 

5  De  Gox,  M.  &  G.  020 ;  25  L.  J.,  Ch.  10  C.  B.,  N.  S.  13 ;  34  L.  J.,  C.  P.  210. 

033;  De  Bras.sac  (;.  Martyn,ll  W.  U.  (/i)  Drury  r.    Macnamara,  5  E.  & 

1020;  Fry,  88.  603,  000;  Dart  V.&  1'.  B.    012;     Pitman    r.    Woodbury,    3 

702.  Exch.    4;    Swatman    v.    Ambler,    80 

((/)  Asylum  for  Fenialc  Ondiansw.  Exch.  72;  22  L.  J.,  Ex.  81 ;  Jinks  r. 

Waterlow,  10  W.  11.  1102,  M.  li.  Edwardn,    11    Exch.    775;    Tress    v. 

(c)  J'ost,  Chap.  V.  Sect.  2.  Savage,  E.  &  B.  30 ;  Cole  Ejec.  222, 

(/)  Parker  v.  Taswell,  2  De  Hex  &  444. 
J.  557;  27  L.  J.,  Ch.  812. 

'  The  court  will  not  decree  specific  performance  of  an  agreement  for  a 
lease  for  a  year.     .Mara  r.  Fitzgerald,  10  Chy.  (Out.)  52. 

1G2 


Ch.  IV.  S.  4.]        ACTION    FOR    SPECIFIC    PEIiFOltMANCE.  *99 

an  action  for  tlie  specific  performance  («')  of  an  agreement 
to  grant,  or  to  take  a  lease,  the  complainant  should  consider  : 
1.  AVhether  the  contract  is  so  complete  and  unobjectionable 
in  every  respect,  that  a  court  of  equity  will  enforce  it  by  a 
decree  for  specific  performance ;  2.  Whether  the  proposed 
evidence  is  sufficient;  3.  Whether  any  and  what  notice 
should  be  given,  or  demand  made,  or  draft  lease  tendered  or 
other  act  done  (^)  by  the  complainant  before  the  commence- 
ment of  the  action;  4.  Who  should  be  plaintiff  or  plaintiffs, 
and  who  should  be  made  defendant  or  defendants ;  5.  On 
whom  the  costs  of  each  party  will  probably  fall ;  6.  Whether 
any  other  and  what  remedy  is  preferable. 

An  action  for  specific  performance  cannot  be  maintained 
after  the  plaintiff  has  recovered  damages  at  law  for  non- 
performance of  the  contract  {I). 

Time,  whether  essence  of  contract.  —  Time  is  not  generally 
considered  as  of  the  essence  of  the  contract  (>»)•■'  "  A  court 
of  equity  will  indeed  relieve  against,  and  enforce,  specific 
performance,  notwithstanding  a  failure  to  keep  the  dates 
assigned  b}^  the  contract,  either  for  completion,  or  for  steps 
towards  completion,  if  it  can  do  justice  between  the  parties, 
and  if  there  is  nothing  in  the  express  stipulations  between 
the  parties,  the  nature  of  the  property  or  the  surrounding  of 
circumstances,  which  would  make  it  inequitable  to  interfere 

(i)  The  law  and  practice  in  actions  tcr  v.  De  Trafford,  31   L.  .1.,  Ch.  554  ; 

for    specific    performance    not    only  Forrer  v.   Nash,  35   Beav.    167 ;    14 

with  respect  to  agreements  for  leases,  W.  R.  8.    Sometimes  the  concurrence 

but  generally,  is  ably  stated  in  Fry  on  (in  a  lease)  of  a  third  person  having 

Specific    Performance    (a.d.    1858)  ;  an  equitable  interest  in  the  property 

also  in  Dart  on  Vendors    and    Pur-  may  be  necessary ;  Reeves  v.  Gill,  1 

chasers.  Chap.  XVIII.  (5th  ed.,  a.d.  Beav.  .375. 

1876),  to  each  of  which  works   fre-  (/)  Sainter  v.  Ferguson,  1   Mac.  & 

quent  reference  will  be  made.    There  Gor.  286 ;  Fry,  s.  65;    Dart  V.  &  P. 

is  also  an  excellent  note  on  the  sub-  703. 

jcct  in  2  Tudor  L.  C.  Eq.  441-461,  (m)  Sug.  V.  &    P.  212,  213   (14th 

2nd  ed.  (note  to  Seton  r.  Slade).   See  cd.)  ;    Dart   V.  &    P.   Chap.   X.;    Id. 

also  1  Scton  on  Decrees,  55)3-626  (3rd  701;    Fry,  s.  4 ;    2  Tudor  L.  C.  Eq. 

ed.).  451  (2nd  ed.)  ;  Davis  r.  Hone,  2  Sch. 

(k)  Aubin  r.  Holt,  2  Kay  &  J.  m,  &  Lef.  341,  347  ;  Cartan  v.  Bury,  10 

70;    25   L.  .T.,  Cli.  36;    Faulkner  v.  Ir.  Ch.  R.  387;  Webb  v.  Hughes,  L. 

Llewellyn,  31  L.  J.,  Ch.  549  ;  Lancas-  R.,  10  Eq.  281,  Malins,  V.-C. 

^  See  post,  sec.  5,  "  Laches." 

163 


*100  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  4. 

^vith  and  modify  the  legal  right.  This  is  what  is  meant,  and 
all  that  is  meant,  where  it  is  said,  that  in  equity  time  is  not 

the  essence  of  the  contract "  (w).^  An  underlease 
[*100]  with  *  compensation  will  not  be  decreed  where  the 

defendant  has  contracted  for  a  lease  (o). 

(a)  Oral  Agreement  ivith  Part  Performance.^ 

Oral  agreement  -writh  part  performance.  —  Although  a  mere 
oral  agreement  for  a  lease  cannot  be  sued  upon  as  such,  an 
action  for  a  specific  performance  can  be  maintained  if  the 
terms  of  such  contract  be  distinctly  proved  or  admitted,  and 
there  has  been  a  sufficient  part  performance  of  the  contract 
to  take  it  out  of  the  operation  of  the  Statute  of  Frauds  (^>).^ 

(n)  Tillpy  v.  Thomas,  L.  E.,  3  Ch.  Tudor    L.    C.    Eq.    455     (2iid    ed.)  ; 

Ap.  61,  67  ;    Roberts  r.  Berry,  3  Be  Blake  v.  Pliinn,  3  C.  B.  OK! ;  Barnett 

Gex,  M.  &  G.  284.  v.  Wheeler,  7  M.  &  W.  364. 

(o)  Madeley  v.  Booth,  2  De  G.  &  (p)  Fry,  ss.  383-407;  Price  ;•.  Sal- 

Sm.  718;  Darlington   v.   Hamilton,   1  usbury,  Bart.,  32  Beav.  446  ;  32  L.  J., 

Kay,  557,  658;    Warren  v.  Kiehard-  Ch.  441 ;  affirmed,  Doni.  Proe.,  14  L. 

son,  You.   1;    Fry,   ss.   803,   858;    2  T.,  N.  S.  110. 

1  Time,  ■wrhen  of  the  essence;  -waiver.  —  Time  is  of  the  essence  of  tlie 
contract  whenever  the  parties  make  it  so.  Benedict  v.  L^nch,  1  Johns.  Ch. 
(N.  Y.)  370,  374  (per  Kent,  Chan.).  And  if  they  do  it  either  expressly  or 
impliedly,  specific  performance  will  not  be  decreed  after  the  time  has  expired. 
Crossficld  v.  Gould,  9  A.  R.  (Ont.)  218. 

Time,  though  made  of  the  essence,  may  be  waived,  as  for  example,  if 
vendee  in  possession  pay,  and  vendor  receive  part  of  purchase  money  after 
the  time  limited  lias  expired,  it  is  a  waiver  and  justifies  specific  jierformance 
notwithstanding  the  delay.     Potter  v.  Jacobs,  111  Mass.  32. 

•2  '<  Qne  of  the  most  conspicuous  exceptions  whicli  courts  have  ever  made 
to  tlie  positive  directions  of  a  statute."     2  Reed  on  St.  of  Frauds,  sec.  542. 

3  The  doctrine  of  part  performance  does  not  apply  at  law,  being  confined 
to  equity.     Jackson  v.  Pierce,  2  Joinis.  (N.  Y.)  221. 

Reed  says  the  doctrine  has  been  denied  in  Alabama,  qualified  in  Kentucky, 
and  is  not  recognized  in  North  Carolina,  Tennessee,  and  Mississijipi.  2  Reed 
on  St.  of  Frauds,  sees.  544-540. 

It  was  originally  <lenied  in  Massachusetts,  Kidder  r\  Hunt,  1  Pick. 
r.Ma8s.)328;  Thompson  r.  Gould,  20  Id.  134;  Adams  r.  Townsend,  1  Met. 
(Mass.)  483;  Jacobs  v.  Peterborough,  &c.,  R.  R.  Co.,  8  Cush.  (Mass.)  223; 
Buck  V.  Dowley,  1(5  Gray,  555;  tlio  cases  being  i)laced  upon  two  grounds,  viz.: 
that  tliey  were  within  tiie  Statute  of  Frauds,  and  that  the  powers  of  the 
court  were  limited  to  "specific  performance  "  of  "written"  contracts.  Rev. 
Sts.,  Ch.  81,  sec.  8. 

The  equity  powers  were  sufficiently  enlarged  in  1857  (St.  1857,  Ch.  214)  ; 
and  full  equity  powers  were  granted  by  St.  1877,  Ch.  178,  sec.  1,  now  Pub. 

104 


Cii.  IV.  S.  4.]  ACTION    FOR   SPECIFIC    PERFORMANCE.         *100 

The  principle  upon  which  courts  of  equity  exercise  their 
jurisdiction  in  decreeing  specific  performance  of  a  parol 
agreement  accompanied  by  part  peiformance,  is  the  fraud 
and  injustice  which  would  result  from  allowing  one  party  to 
refuse  to  perform  his  part,  after  part  performance  by  the 
other  upon  the  faith  of  the  contract  ((/). 

What  acts  are  or  are  not  sufficient.  —  In  equity  the  acts  of 
part  performance  must  be  such  as  are  referable  to  the  con- 
tract as  alleged,  and  consistent  with  it  (r)  ;  ^  and  such  as 
cannot  be  referred  to  any  other  title  than  the  alleged  agree- 
ment, nor  be  considered  done  with  any  other  view  or  design 
than  to  perform  it  (s).  Tlierefore  the  mere  possession  Ijy 
the  tenant  is  not  sufhcient,  because  that  may  be  referred  to 
his  character  as  tenant,  under  the  implied  tenancy  created 
by  entry  (f)?     So  the  expenditure  by  the  tenant  of  monies 

(7)  Buokmaster  v.  Harrop,  7  Vcs.  L.  J.,  Ch.  441  ;  affirmed,  Dom.  Proc. 

340;  Munday  v.  Joliffe,  5  Myl.  &  Cr.  14  L.  T.,  N.  S.  110;  Nunn  v.  Fabian, 

177  ;  Gregory  v.  Wilson,  2  Hare,  690 ;  L.  R.,  1  Ch.  Ap.  35,  40 ;  35  L.  J.,  Ch. 

Fry,  s.  338;    Dart  V.  &  P.  (558,  6G0;  140. 

Wilson  V.  West  Hartlepool  R.  Co.,  .34  (s)  See    Maddison    v.    Alderson,   8 

L.  J.,  Ch.  241 ;  13  W.  R.  361 ;   L.  JJ.  App.  Cas.  473 ;  52  L.  J.,  Q.   B.  737  ; 

Caton  V.  Caton,  L.  R.,  1  Ch.  Ap.  137,  49  L.  T.  303 ;  31  W.  R.  820. 
148;    Addison    on    Contr.    392     (7th  (0  Wills  r.  Stradling,  3  Ves.  378; 

ed.).  Morphett   v.   Jones,    1     Swans.    181; 

(r)  Fry,    s.    386 ;     Tomkinson     f.  Faulkner  v.  Llewellyn,  31  L.  J.,  Ch. 

Straight,  17  C.  B.  697  ;    Faulkner  v.  549  ;  12  W.  R.  193  ;  5  Vin.  Abr.  323, 

Llewellyn,  31  L.  J.,  Ch,  549;  11  W.  pi.  41 ;  but  see  Pain  v.  Coombs,  3  Sm. 

R.  1055 ;    12  W.  R.  193 ;    Powell  v.  &  Giff.  449 ;    1   De  Gex  &  J.  24 ;  3 

Lovegrove,  8  De  Gex,  M.  &  G.  357;  Jur.,  N.  S.  307,  847;  Miller  v.  Finlay, 

Price  V.  Salusbury,  32  Beav.  446;  32  5  L.  T.,  N.  S.  510. 

Sts.,  Ch.  151,  sec.  4.  And  the  doctrine  of  part  performance  is  now  in  full 
force  in  Massachusetts.  Potter  i-.  Jacobs,  111  Mass.  32 ;  Curran  v.  Holyoke 
Water  Power  Co.,  116  Mass.  90. 

^  Part  performance,  essentials  of.  —  Payment  of  the  entire  purchase 
money  (alone)  is  not  a  sufficient  ])art  performance.  Johnson  v.  Tlie  Canada 
Company,  5  Chy.  (Ont.)  5-58;  Barnes  v.  Boston  &  Maine  R.  R.,  130  Mass.  388. 

-  Acts  decisive  of  the  character  of  the  occupation  are  sufficient. 

Examples :  possession  and  payment  of  rent  are  sufficient  to  hold  both 
parties.  Walsh  v.  Rundlette,  2  MacArthur  (Supreme  Ct.  D.  C.)  114;  Clark 
V.  Clark,  49  Cal.  586. 

Entry  and  making  improvements  are  sufficient.  McFarlane  /-.  Dickson, 
13  Chy.  (Ont.)  203;  Lloyd's  Law  of  Building  and  Buildings,  sec.  92.  Pos- 
session and  enjoyment  by  lessee  for  part  of  term  are  sufficient  against  liis 
sureties  on  the  rent.  County  of  Huron  v.  Kerr,  15  Chy.  (Ont.)  265.  Con- 
tinuance in  possession  under  a  contract   for  a  new  lease   and   payment  of 

165 


*101  AGREEMENT   FOR    LEASE.  [Ch.  IV.  S.  4. 

on  the  farm  in  the  ordinary  course  of  husbandry,  is  no  part 
performance  of  an  agreement  for  a  lease,  but  attributable  to 
his  implied  tenancy  (w).  But  possession  and  special  expendi- 
ture by  the  tenant,  provided  that  it  be  such  that  would  be 
likely  to  take  place  only  in  the  pursuance  of  such  a  contract 
as  that  alleged,  and  it  be  with  the  privity  of  the  other  party, 
is  an  act  of  part  performance :  as  where  the  tenant  enters 
and  builds,  or  causes  expensive  alterations  to  be  made  (a-). 

Outlay  by  sub-lessee.  —  And  an  outlay  by  a  sub- 
[*101]  lessee,  made  with  the  *  knowledge  and  approval  of 
the  party  agreeing  to  grant  the  lease,  has  been  held 
to  be  as  much  part  performance  as  if  it  had  been  the  outlay 
of  the  tenant  himself  (y/).  The  laying  out  of  considerable 
sums  of  money  by  a  person  who  enters  under  an  agreement 
for  a  long  term,  is  rationally  to  be  referred  to  such  agreement, 
rather  than  to  the  mere  tenancy  at  will  to  be  implied  from 

(i()  Brennan   v.  Bolton,  2    Dru.  &  Mundy  v.  Joliffo,  5  Myl.  &  Cr.  167  ; 

^V.  349;  Fry,  ss.  387,  402.  Surcome  v.  Pinniger,  3  De  Gex,  M.  & 

(x)  Wills  V.  Stradling,  3  Ves.  378;  G.  571 ;  and  see  Farrell  v.  Davenport, 

Stoekley  v.  Stockley,  1  V.  &  B.  23;  8  Jur.,  N.  S.  862,  1043. 
Toole  r.  Medlicott,  1  Ball  &  B.  393 ;  (//)  Williams    r.   Evans,  L.  R.,  19 

Sutherland   v.   Briggs,    1    Hare,   26;  Eq.  547  ;  44  L.  J.,  Ch.  319. 

higher  rent  are  sufficient.  Spear  v.  Orendorf,  26  Md.  37  ;  Story's  Eq.  Jur. 
Sec.  763. 

In  case  of  a  vendee,  possession  and  payment  of  part  of  purchase  money 
are  sufficient,  Farquhasoii  v.  Williamson,  1  Ciiy.  (Ont.)  93;  Bomier  v.  Cald- 
well, 8  Mich.  463;  likewise  possession  and  making  improvements,  Jennings 
V.  liohertson,  3  Chy.  (Ont.)  513;  Rogers  r.  Rogers,  2  Id.  137,  145;  Arguello 
V.  Edinger,  10  Cal.  150,  160;  or  possession  part  payment  and  valuable  im- 
provements. Potter  V.  Jacobs,  111  Mass.  32;  and  possession  with  part  pay- 
ment by  intended  vendee,  together  witii  execution  without  delivery  of  deed 
by  intended  vendor,  Dickerson  v.  Chrismaii,  28  Mo.  134. 

Possession,  payment  of  taxes,  and  labor  under  special  circumstances  are 
sufficient.     McCray  i'.  McCray,  30  Barb.  (N.  Y.  Supreme  Ct.)  633. 

Mere  possessi(jn  by  a  vendee  and  payment  of  interest  is  not  sufficient. 
Townsley  v.  Charles,  2  Chy.  (Ont.)  313. 

To  transform  a  tenant  into  an  etjuitable  vendee,  it  is  sufficient  for  liim  to 
remain  in  possession,  and  make  payments  upon  the  puridiase  money  ceasing 
to  pay  rent.  Butler  v.  Church,  16  Ciiy.  (Out.)  205.  But  if  such  acts  or 
imi)rovements  are  equivocal  and  consistent  with  tlic  continuance  of  the 
tenancy,  tiu-y  are  insufficient  to  cliange  the  tenant  into  a  vendee.  Kankin  v. 
Simpson,  19  Pa.  St.  471. 

Acts  to  be  a  part  performance  of  any  contract  must  be  unequivocally 
referrible  to  that  contract.     Barnes  v.  Boston  &  Maine  R.  U.,  130  Mass.  388. 

IIJG 


Ca.  IV.  S.  4.]        ACTION   FOR    SPECIFIC    PERFORMANCE.  *101 

such  entry  (2).  After  such  expenses  have  been  incurred  on 
the  faith  of  a  lease  agreed  to  be  granted,  it  would  be  fraudu- 
lent and  inequitable  for  the  landlord  to  refuse  to  grant  such 
lease  (a)  ;  but  tliis  cannot  be  said  of  the  ordinary  expenditure 
of  a  tenant.  Where  a  tenant  under  a  term  alleged  the  rebuild- 
ing of  a  party-Avall,  which  was  in  a  ruinous  state  during  his 
term,  as  part  performance  of  an  agreement  by  his  landlord  to 
grant  a  renewed  term :  it  was  held,  that  the  act  was  equivocal, 
as  it  might  have  been  done  by  him  as  well  in  respect  of  his 
title  under  the  old  term,  as  under  the  alleged  agreement  for 
a  renewed  term  (J). 

Payment  of  increased  rent.  —  In  Nunn  v.  Fabian,  a  landlord 
having  verbally  agreed  with  his  tenant  to  grant  him  a  lease 
for  twenty-one  years  at  an  increased  rent,  with  the  option 
of  purchasing  the  freehold,  died  before  the  execution  of  the 
lease.  Before  his  death  the  tenant  had  paid  one  quarter's 
rent  at  the  increased  rate.  It  was  held,  that  this  constituted 
a  sufficient  part  performance  of  the  agreement  to  take  the 
case  out  of  the  Statute  of  Frauds,  and  specific  performance 
was  decreed  (e). 

New  lease,  &c.  —  Where  an  agreement  in  writing  for  a 
three  years'  tenancy  reserved  to  the  tenant  the  option  of 
requiring  a  twenty-one  years'  lease  at  the  expiration  of  the 
prior  term,  V.-C.  Wigram  appears  to  have  considered  that 
the  tenant's  verbal  notice  of  an  intention  to  take  the  new 
lease,  accompanied  by  retention  of  possession,  was  binding 
upon  him  (t?).  The  possession  of  a  tenant  after  the  expira- 
tion of  his  lease,  under  an  agreement  for  a  renewed  lease, 
has  been  held  a  sufficient  part  performance  (e),  and  so  has 
the  possession   of  a  stranger  under  an  express   or  implied 

{z)  Fry,  s.  402  ;  Farrell  v.  Daven-  ('■)  Nunn  v.   Fabian,  L.  R.,  1   Ch. 

port,  3  Gift.  363;  8  Jur.,  N.  S.  862,  App.  .S5 ;  35  L.  J.,  Cli.  140.    Compare 

1043.  this  with  Re  National  Saviiifi?  Bank 

(«)  Frame     v.    Dawson,    14    Vcs.  Association,  Ex  parte  Brady,  15  W. 

386 ;    Lindsay    v.    Lynch,   2    Sch.    &  R.  753. 

Lef .    1 ;    see   Williams   ?•.  Evans,  32  (rf")  Beatson    v.   Nicholson,   6   Jur. 

L.  T.  360.  620. 

(6)  Frame  ii.  Dawson,  and  Lindsay  (e)  Dowell  v.  Dew,  1  You.  &  Coll. 

i;.  Lynch,  supra.  C.  C.  345  ;  Dart  V.  &  P.  656. 

167 


*102  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  4. 

agreement  for  a  lease  (/).  It  has  also  been  held,  that  the 
o-iving  up  a  business,  coupled  with  possession,  was  part  per- 
formance, although  the  tenant  agreed  to  pay  nothing  but 
ground  rent,  rates  and  taxes  ((/). 

Terms  must  be  certain.  —  But  the  COUrt  will  not 
[*102]  decree  a  specihc  performance,  although  *  possession 
has  been  taken,  unless  the  terms  of  the  contract  are 
clearly  proved  (A)  ;  nor  if  any  of  the  terms  are  uncertain  (i)  ; 
although  vagueness  of  language  in  a  contract  may  sometimes 
be  cured  by  evidence  of  surrounding  circumstances,  and  of 
the  subsequent  conduct  of  the  parties  (^).  The  doctrine  of 
part  performance  of  a  parol  agreement  is  not  to  be  extended 
by  the  court,  and  it  is  inapplicable  in  a  case  where  a  trustee 
has  a  power  to  lease  at  the  request  in  writing  of  a  married 
woman,  which  has  not  b^en  made  Q). 

Execution  of  repairs.  —  In  Shillibeer  V.  Jarvis,  after  an  offer 
had  been  made  by  a  plaintiff  to  take  a  lease  of  a  farm  from 
the  defendant  a  draft  was  prepared  by  the  defendant's  solici- 
tors, and  approved  of  by  the  plaintiff  with  some  alterations, 
and  was  afterwards  altered  by  the  defendant  himself,  and 
left  by  him  with  his  solicitors,  for  the  purpose  of  its  being 
ascertained  whether  the  plaintiff  would  agree  to  the  altera- 
tions. On  their  submitting  it  to  him  he  agreed  to  the  altera- 
tions, but  no  agreement  was  signed.  A  part  of  the  terms 
was,  that  the  plaintiff  should  execute  certain  repairs  before 
the  lease  was  granted.  The  plaintiff  was  put  into  possession 
by  the  dhcction  of  the  defendant's  solicitors,  and  executed 
some  repairs.     It  was  held,  that  although  the  plaintiff  might 

(/)  Fry,  ss.  397-400;    Gregory  v.  (/)  Reynolds    v.   Waring,    1    You. 

Migliell,  18  Yes.  328  ;  Vain  v.  Coombs,  34() ;    Price    v.  Asshoton,  1  Y.  &   C. 

3  Sm.  &  Gif.  449  ;  1  I)c  Gex  &  J.  34,  441. 
40;  3  Jur.,  N.  S.  307,  847.  (/>)  Oxford  v.  I'roband,  L.  Jl.,  2  P. 

(</)  Coles  V.  Pilkiiigton,  L.   R.,  19  C.  C.  135;  Coupland  v.  ArrowsTiiith, 

Eq.'  174  ;  31  L.  T.  422.  18  L.  T.,  N.  S.  75'). 

(h)  Mortal   V.  Lyons,  8  Ir.  Cli.  R.  (/)  l'iiillii)s    v.  Edwards,  33    Beav. 

112.  440. 

1  I'arkimrst  v.  Van  Cortlandt,  1  Johns.  Ch.  fN.  Y.)  273;  Morton  v.  "Dean. 
13  Met.  (Mass.)  385,  388;  Gill  r.  15icknell,  2  Ciish.  (Mass.)  355,  358,  359  (;«'r 
Shaw,  C.  J.). 

An  agreeinont  to  take  a  lease  does  not  hind  the  intended  lessee  to  take 
one  containing  unusual  covenants.     Hayden  v.  Lucas,  18  Mo.  App.  325. 

I(i8 


Ch.  IV.  S.  4.]       ACTION   FOR   SPECIFIC   PERFORMANCE.  *103 

have  been  let  into  possession  without  authority  from  the 
defendant,  there  was  a  concluded  agTcenient  for  a  lease  on 
the  part  of  the  defendant,  and  a  sufficient  part  performance 
to  take  the  case  out  of  the  Statute  of  Frauds,  and  specific 
performance  was  decreed  (w).  Where  the  plaintiff  and  the 
defendant  entered  into  an  agreement,  that  when  a  certain 
house  belonging  to  the  plaintiff  should  be  completed  and 
finished  fit  for  habitation,  the  plaintiff  would  grant  to  the 
defendant  a  lease  of  such  house  for  twenty-one  years,  and 
the  defendant  took  possession  before  the  house  was  com- 
pleted, and  occupied  it  for  a  year ;  but  refused  to  pay  rent 
or  execute  the  lease  until  the  house  should  be  comi)leted 
and  finished  fit  for  habitation :  whereupon  the  plaintiff  filed 
a  bill  for  specific  performance,  and  moved  that  the  defendant 
might  be  ordered  to  pay  the  year's  rent  into  court ;  the 
motion  was  refused  with  costs  (w) . 

Oral  agreement  must  be  definite.  —  Of  course  the  oral  agree- 
ment, of  which  the  part  performance  is  relied  on,  must  be  of 
such  a  nature,  i.e.  so  definite  and  unobjectionable,  that  if  it 
had  been  in  writing,  and  duly  signed,  the  court  would  have 
decreed  specific  performance  of  it  (o). 

*  (b)    There  must  be  a   Complete   Contract.  [*103] 

Whether  the  contract  be  proved  by  one  or  more  writ- 
ings (/>),  or  by  parol  evidence,  coupled  with  sufficient  acts 
of  part  performance  (^),  there  must,  in  each  case,  be  a  com- 
plete  contract  (r). 

Bscrow.  —  An  escrow  or  writing,  delivered  subject  to  a 
condition  which  has  not  been  performed,  is  not  sufficient  (s). 


(m)  Sliillibeer  v.  Jarvis,  8  De  Gox,  (r)  Dart  V.  &  P.  657;  Jackson  v. 

M.  &  G.  79.  Oglaiuler,  2  H.  &  M.  4G5;  13  W.  R. 

(?i)  Faulkner  r.  Llewellyn,  31  L.  J.,  03G;  Lewers  v.  Earl  Shaftesbury,  L. 

Ch.  549;  11  W.  R.   1055;    12  W.  R.  R.,  2  Eq.  270 ;  16  L.  T.,  N.   S.   135; 

193 ;  and  see  Modlen  v.  Snowball,  29  Bankart   v.  Tennant,   39   L.   J.,  Ch. 

Beav.  641  ;  31  L.  J.,  Ch.  44 ;   4  De  809 ;  23  L.  T.  137. 

Gex,  F.  &  J.  143.  (s)  Wheate    i-.   Hall,   17   Ves.   80 ; 

(o)  Fry,    ss.    392-394 ;    Thynne    v.  Pym    v.  Campbell,  6   E.    &   B.  370 ; 

Ld.  Glengall,  2  H.  L.  Cas.  158.  Gudgen  v.  Bessett,  Id.  980  ;   Miller- 

(p)  Ante,  92.  ship  v.  Brooks,  5  H.  &  N.  797;  27  L. 

(?)  Ante,  100.  J.,  Ex.  369. 

169 


*103  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  4. 

Unaccepted  proposal.  —  A  mere  proposal  to  offer  or  take  a 
lease  does  not,  before  acceptance  thereof,  constitute  a  com- 
plete contract.^ 

"What  acceptance  is  sufficient.  —  The  acceptance,  to  be  op- 
erative, must  be  unequivocal,  unconditional  and  without 
variance  of  any  sort  between  it  and  the  proposal  (0,  and 
communicated  to  the  other  party  within  a  reasonable 
time  (u). 

Revocation.  —  The  proposal  or  offer  may  be  revoked  at 
any  time  before  such  acceptance  (a;)  ;  but  not  afterwards  (?/). 

Effect  of  acceptance.  —  Unless  the  proposal  or  offer  be 
accepted  without  unreasonable  delay  a  revocation  thereof 
may  be  implied ;  for,  in  the  absence  of  any  special  stipula- 
tion to  the  contrary,  it  is  always  subject  to  an  implied  con- 
dition that  it  be  accepted  within  a  reasonable  time,  what 
time  is  reasonable  being  a  question  of  fact  (2).  An  unac- 
cepted offer  does  not  bind  the  land,  nor  the  trustees  of  the 
person  making  the  offer,  on  his  becoming  a  bankrupt  (zz). 

(0  Frv,   ss.   1G7-175;    "Warner    v.  9"(y;  Rummens  v.  'Rnbbins,   11  Jur., 

Willington,  3  Drew.  523  ;   25    L.  J.,  N.  S.  631 ;  13  W.  II.  97!),  L.  JJ. 

Ch.  (i(;2  ;   (sending  of  draft  lease  held  (.y)  See  Baines  v.   Woodfall,  6  C. 

not  sufficient)  ;  Foster  v.  Rowland,  7  B.,  N.  S.  G57  ;    Cowley  v.  Watts,  17 

H.  &  N.  103 ;  30  L.  J.,  Ex.  396.  Jur.  72,  M.  R. 

(u)  See    Brogden   v.    Metropolitan  (s)  Williams  v.  "Williams,  17  Beav. 

R.  Co.,  2  App.  Cas.  692.  213. 

(r)  Warner  v.  Willinston,  3  Drew.  (—)  Meynell   v.   Surtees,  2   Sm.  & 

623;  25  L.  J.,  Ch.  662;    Jackson   v.  Giff.  101 ;  IJur.,  N.  S.  737. 
Oglander,  2   II.  &  M.  465 ;  13  W.  R. 

^Proposal  and  acceptance.  —  A  lessor's  written  acceptance  of  lessee's 
projjosal  to  take  a  new  leiise  completes  the  contract,  and  may  he  enforced  by 
the  lessee.  Ryder  v.  Robinson,  109  Mass.  67.  Of  course  such  contract  (not 
bein},^  sijined  by  the  lessee)  could  not,  under  the  Statute  of  Frauds,  be  enforced 
against  him  unless  partly  fulfilled.  An  offer  to  make  any  contract  is  not  bind- 
ing unless  accepted  according  to  the  terms  of  the  proposal.  Eliason  v.  llen- 
bliaw,  4  Wheat.  225.  It  may,  however  (subject,  of  course,  to  the  statute),  be 
impliedly  accepted,  as  by  taking  the  benefit  of  the  proposal.  Mactier  v.  Frith, 
0  Wend.  (N.  Y.)  103.  If  the  offer  is  made  upon  conditions,  fulfilment  of  the 
conditions  by  tlie  promisee  fi.xes  the  liability  of  the  promisor.  Cutting  v. 
Dana,  25  N.  .1.  Eq.  265. 

An  offer  may  be  accepted  by  letter,  and  will  be  binding  immediately  ui)on 
transmission.  Brisban  v.  Boyd,  4  Paige  (N.  Y.)  17;  Iloughwout  v.  Boisaubin, 
18  N.  J.  Kq.  315,  322.  It  has  been  held  that  it  is  binding  immediately  the 
letter  of  acceptance  is  deposited  in  the  post-office,  thougli  in  fact  never 
received.     "Vassar  v.  Camp,  11  N.  V.  111. 

•     170 


Cii.  IV.  S.  4.]       ACTION   FOR   SPECIFIC   PERFORMANCE.  *104 

So  long  as  a  proposal  or  offer  is  an  existing  one,  i.e.  until  it 
has  been  accepted  or  revoked,  expressly  or  by  implication, 
the  other  party  may,  b}-  accepting  it  purely  and  simply, 
without  any  addition  or  other  alteration  whatever,  make  it 
an  agreement  (a)  ;  nor  is  an  acceptance  by  ivriting  neces- 
sary (6),  unless,  indeed,  by  the  terms  of  the  j)roposal,  an 
agreement  or  contract  in  writing  is  to  be  made  (</). 

Counter-proposal.  —  An  acceptance  of  a  proposal  or  offer, 
subject  to  any  new  term  or  other  variation,  amounts  only  to 
a  counter-proposal,  which  must  be  accepted  purely  and 
simply  before  there  will  be  any  complete  agreement  (t?). 
Where  the  proposal  or  offer  is  agreed  to,  but  a  different  day 
is  named  for  possession  to  be  given  that  is  not  sufficient  as 
an  acceptance  (e).  The  acceptance  of  a  proposal  for 
a  lease,  adding,  "We  hope  to  give  you  *  possession  [*104] 
at  half-quarter  day,"  has  been  held  sufficient,  the 
latter  words  having  no  legal  operation  (/).  But  there  is  no 
complete  contract  if  terms  be  offered  for  a  lease  and  accepted 
for  a  sub  le^se  (^),  or  if  a  particular  covenant,  such  as  not  to 
assign  without  licence,  be  not  agreed  to  (A),  or  if  even  the 
questions  as  to  the  costs  of  the  counterpart,  and  by  whom  it 
should  be  engrossed,  are  left  open  (t). 

After  a  counter-proposal.  —  After  a  counter-proposal  the 
party  making  it  cannot  accept  the  first  proposal,  so  as  thereby 
to  make  it  binding  as  an  agreement.  Therefore,  where  the 
owner  of  a  farm  offered  to  sell  it  to  A.  for  1,000/. ;  upon 
which  A,  wrote  offering  950Z.  which  was  refused,  and  then 

C")  Bnumaun    v.   James,    L.   R.,  3  &  S.  397  ;  see  also  Johnson  v.  King, 

Ch.  Ap.  508;  16  W.  R.  877.  2  Bing.  270. 

(6)  See  Reuss  v.  Pickley,  L.  R.,  1  {g)  Holland  v.  Eyre,  2  Sim.  &  Stu. 

E.x.  342 ;  Fry,  s.  292.     The  acceptor  194. 

however  cannot  hiinself  be  sued  on  (/*)  Lucas  v.  James,  7  Hare,  410. 

the  parol  acceptance.     Fry,  s.  294.  (/)  Forster  v.  Rowland,  7  H.  &  N. 

(c)  See  London   Dock  Co.  r.  Sin-  103.;  30  L.  J.,  E.x.  39G.    Compare  this 

nott,  8  E.  &  B.  347  ;  27  L.  J.,  Q.  B.  with   Shillibeer  v.  Jarvis,  8  De  Gex, 

347.  M.  &  G.  79,  ante,  94;  and  see  Jackson 

{d)  See  Hoheyman  ;;.  Marryatt,  21  v.  Oglander,  2   H.  &  M.  465;  13  W. 

Beav.  14 ;  26  L.  J.,  Ch.  619  ;  6  H.  L.  R.  936,  where  the  lease  had  been  set- 

Cas.  112.  tied  on  both  sides  and  engrossed  pur- 

(e)  Routledge    v.    Grant,   4    Bing.  suant  to  an  oral  agreement:  —  held, 

653.  no  sufficient  contract. 

(/)  Clive  V.  Beaumont,  1  De  Gex 

171 


*104  AGREEMENT  FOR   LEASE.  [Ch.  IV.  S.  4. 

A.  signified  his  acceptance  of  the  original  offer :  it  was  held, 
that  there  was  no  contract  between  the  parties,  and  a  specific 
performance  was  refused  (/r). 

Correspondence  after  proposal.  —  It  not  unfrequently  hap- 
pens that  when  a  proposal  or  offer  is  made  a  correspondence 
takes  place  upon  the  subject,  and  it  is  sometimes  difficult  to 
say  whether  the  result  of  such  correspondence,  the  construc- 
tion of  which  is  for  the  court,  not  for  a  jury,  shows  a  com- 
plete contract  or  merely  a  series  of  unaccepted  proposals  and 
counter-proposals  (^).  Letters  will  not  constitute  an  agree- 
ment which  the  court  will  specifically  perform,  unless  the 
answer  is  a  simple  acceptance,  without  the  introduction  of  a 
new  term  (wi). 

Signed  proposal,  binding  after  oral  acceptance.  —  A  written 
proposal  or  offer  signed  hy  the  defendant  and  accepted  orally 
by  the  plaintiff,  is  sufficient  to  satisfy  the  statute  (?i).  But 
a  written  proposal  or  offer  signed  by  the  plaintiff,  must  be 
assented  to  in  writing  hy  the  defendant  to  bind  him  and  to 
satisfy  the  statute  (o).  The  acceptance  of  a  proposal  by  a 
corporation  must  generally  be  under  their  common  seal,  or 
pursuant  to  the  express  provisions  of  some  act  of  parlia- 
ment, before  there  will  be  any  contract  (jo).^ 

Stamp. — A  written  proposal  or  offer,  which  is  accepted 
orally,  need  not  be  stamped  as  an  agreement  (^). 

(k)  Hyde  v.  Wrench,  3  Beav.  334.  (o)  Felthouse  v.  Bindley,  11  C.  B., 

(/)  See  Iloneyinan  i'.  Marryatt,  21  N.  S.  8(59. 

Beav.  14;  20  L.  J.,  Cli.  019;  0  11.  L.  {p)  London  Docks  Co.  v.  Sinnott, 

Cas.  112 ;  Ridgway  v.  Wharton,  0  11.  8  E.  &  B.  327  ;   27  L.  J.  Q.  B.  347  ; 

L.  Cas.  238;  27  L.  J.  Ch.  40;  Beau-  Ilaifrh  v.  North  Brierly  Union,  1  E., 

niann  v.  James,  L.  R.,  3  Ch.  Ap.  508;  B.  &  E.  873,  883;  28  L.  J.  Q.  B.  62; 

10  W.  R.  877.  Copper   Miners    of    Enghmd    Co.    v. 

(m)  Wright  v.  St.  George,  12   Ir.  Fo.x,  10  Q.  B.  229. 

Ch.  R.  220.  (q)   Drant   v.   Brown,    3   B.   «&-  C. 

(n)  Reuss  v.  Pickslcy,  L.  R.   1  Ex.  005. 
342  ;  4  H.  &  C.  688  ;  14  W.  R.  924. 

1  It  is  not  now  so  understood  in  America.  (?>oe  ante,  Ch.  1,  sec.  12,  notes, 
and  Ch.  2,  sec.  9,  notes.)  A  corporation  may  accept  a  lease  (of  course  one 
not  ultra  vires),  either  expressly  or  impliedly,  in  the  same  way  that  the  indi- 
vidual may,  unless  restrained  hy  its  ciiarter.  The  use  of  a  seal  hy  a  corpora- 
tion in  making  a  contract  is  uniu'cessary  except  wliere  the  nature  of  the 
contract  requires  it. 

Ordinarily,  directors  have  authority  to  accept  a  lease  necessary  for  corpora- 
tion purposes.     It  may,  however,  he  provided  otherwise. 

172 


Cii.  IV.  S.  4.]      ACTION   FOK   SPECIFIC   PERFORMANCE.  *105 

(c)  Agreement  subject  to  preparation  of  formal  coyitract. 

There  is,  of  course,  no  binding  agreement  wlien  the  wi-iting 
appears  only  to  he  terms  agreed  on  as  a  basis  for 
an  agreement,  and  not  the  *  agreement  itself  (r)  ;  or  [*105] 
where  it  provides  that  any  of  the  terms  are  to  be 
afterwards  settled  (s)  ;  or  where  it  is  expressed  to  he  "  sub- 
ject to  the  preparation  and  approval  of  a  formal  con- 
tract "  (i^)  ;  or  subject  to  a  contract  to  be  settled  between 
the  plaintiff's  solicitors  and  the  defendant  (?;)  ;  or  snbject  to 
the  terms  of  the  draft  lease  being  "  reasonable  in  the  estima- 
tion "  of  the  defenda]it  (i) ;  or  where  there  appears  any 
design  of  further  negotiation  (^).  The  court  Avill  refuse  to 
act  where  it  only  rests  reasonably  doubtful  whether  what 
passed  was  only  treaty,  let  the  progress  towards  the  confines 
of  agreement  be  more  or  less  (2).  But  the  mere  fact  that 
the  parties  have  expressly  stipulated  that  there  shall  after- 
wards be  a  formal  agreement  prepared  does  not  by  itself 
show  that  they  continue  merely  in  negotiation  (a).  There- 
fore correspondence  about  the  taking- of  a  house  was  held  to 
constitute  a  sufficient  agreement,  thoupfh  the  accent  of  the 
lessor  accepted  the  offer  thus:  —  "These  terms  I  have  sub- 
mitted to  Mrs.  S.,  and  I  am  authorized  to  say  they  are 
accepted,  and  that  her  solicitor  will  draw  up  a  proper 
agreement  for  signature,  which  I  will  forward  to  you  "  (^), 
and  an  acceptance  by  a  party  merely  expressed  to  be  subject 
to  the  approval  of  his  solicitor  will  it  seems  bind  him  (c). 
The  question  in  cases  of  this  sort  is,  whether  the  writing  was 

(r)  Frost  v.  Moulton,  21  Bcav.  496.  (//)  Tawney  v.  Crowther,  3  Bro.  C. 

(s)  Wood  y.  ]Mi(lglcy,  T)  De  Gex,  M.  C.  318;  Stratford  v.  Bosworth,  2  V. 

&  G.  41 ;  Honeyman  v.  Marryatt,  21  &  B.  341. 

Beav.  14;  26  L.  J.,  Ch.  G19;  6  H.  L.  (;)  Huddlcstone  v.  Briscoe,  11  Yes. 

Cas.  112.  592 ;  Jackson  r.  Oglander,  2  H.  &  M. 

(0  Winn  V.  Bull,  L.  R.,  7  CIi.  D.  465;  13  W.  R.  936;  Fry,  s.  343. 

29;  47  L.  J.,  Ch.  139;  26  W.  R.  230;  (n)  Rossitor  v.  Miller,  L.  R.  3  App. 

Bonnevvell  A  Jenkins,  L.  R.,  8  Ch.  D.  Cas.  at  p.- 1151. 

70.  (h)  Skinner  v.  M-Dowall.  2  De  Gex 

(u)  Harvey  v.  Barnard's  Inn,  45  L.  &  S.  2()5. 

T.  280,  per  Fry,  J.  (r)  Fadie  i:  Atkinson,  49  L.  J.,  Ch. 

(r)  Wilcox   V.   Redhead,  49    L.   J.  80 ;  and  see   Hussey   r.   Horn-P.iyne, 

Ch.  539;  28  W.  R.  795,  per  Hall,  V.-C.  L.  R.  4  App.  Cas.  sil. 

173 


*106  AGREEMENT   FOR    LEASE.  [Ch.  IV.  S.  5. 

intended  to  operate  as  a  binding  contract  until  a  more  formal 
one  should  be  signed  ((?),  and  there  appears  to  be  no  distinc- 
tion in  this  respect  between  a  contract  for  a  sale  and  a  con- 
tract for  a  lease. 


Sect.  5.  —  G-roimds  for  Refusal  of  Specific  Performance. 

Agreement  must  be  definite  and  unobjectionable.  —  The  agree- 
ment must  not  onl}^  be  complete  as  a  contract  (e),  and 
proved  by  a  writing  or  writings  sufficient  to  satisfy  the  Stat- 
ute of  Frauds  (/),  or  by  parol  evidence,  coupled  with  sufficient 
part  performance  to  take  it  out  of  the  statute  ((/) ;  but  it 
must  also  be  of  so  definite  and  specific  a  nature  (Jt),  and  unob- 
jectionable in  other  respects,  that  the  court  will  decree 
[*106]  a  performance  of  it.  Therefore  a  court  of  *  equity 
will  not  decree  the  specific  performance  of  a  con- 
tract for  the  purchase  of  a  lease,  where,  from  pending  and 
threatened  litigation,  it  is  impossible  to  ascertain  to  whom 
the  ground  rent  is  payable,  and  the  pui-cliaser  may  be 
involved  in  immediate  .litigation  (?).^  In  Tildesley  v.  Clark- 
son  (7c),  the  Court  declined  to  compel  the  defendant  to  take 
a  lease  of  a  new  house,  which  the  plaintiff^  had  contracted  to 
"  finish  and  deliver,"  on  the  ground  that  upon  a  competent 
survey  the  house  had  been  found  defective  and  finished  in 
such  a  manner,  that  it  was  likely  to  subject  the  defendant, 

(r/)  Ridgway  v.  Wliarton,  0  II.  L.            (0  Pcsrlcr  v.  Wliitc,  33  Bcav.  403; 

Cas.  238 ;  27  L.  J.,  Cli.  40.  33  L.  J.,  Ch.  569. 

(e)  Ante,  p.  103.  (A)  Tildosluy  v.  Clarkson,  30  Beav. 

(/)  Ante,  p.  85.  419;  31   L.  J.,'ch.  302,  per  Romilly, 

((l)  Ante,  p.  100.  M.  R. 

(//)  Bernard  v.  Mcara,  12  Ir.  Ch.  R. 
389. 

1  It  will  not  be  granted  against  party  out  of  possession  where  possession 
can  only  be  obtained  by  suit,  because  a  contract  for  sucii  possession  savors  of 
maintenance.  Fry  on  Specific  lVrforinan(!e,  sec.  213.  A  covenant  of  a  lessee 
with  sub-lessee  to  renew  sub-lease  if  principal  lease  is  renewed  to  him,  will  be 
enforced  in  equity,  notwithstanding  lessee  has  given  prior  lease  t«  party  who 
takes  with  knowledge  of  the  tenancy.     Cunningham  /•.  I'attee,  99  Mass.  248. 

An  agreement  for  a  mining  lease  will  be  enforced  notwithstanding  a  dis- 
pute as  to  amoimt  of  royalties  after  the  intended  lessee  has  taken  coal  from 
the  premises,  and  no  option  will  be  allowed  liim  to  pay  or  surrender.  Lewie 
V.  James,  32  Ch.  1).  320. 

174 


Cii.  IV.  S.  5.]      REFUSAL   OF   SPECIFIC    PERFORMANCE.  *10G 

under  the  covenant  to  repair,  to  an  unusually  large  annual 
outlay  to  maintain  it  (Is:).  Where  an  agreement  for  a  lease 
of  mineral  property  did  not  clearly  define  the  mineral  area 
to  be  comprised  in  the '  lease,  the  court  refused,  at  the 
instance  of  the  proposed  lessee,  to  decree  specific  perform- 
ance of  the  agreement  (V).  The  court  will  not  decree  spe- 
cific performance  of  a  contract  for  a  lease  of  premises,  where 
one  of  the  stipulations  of  the  contract  is,  that  the  lessee  shall 
engage  the  personal  services  of  the  lessors  in  the  business  to 
be  carried  on  upon  the  premises  (^/O-    ^^^  ^^^  agreement  for  a 

lease  "  for  seven,  fourteen  or years,"  was  held  to  entitle 

the  tenant  to  a  lease  for  fourteen  yeai's,  determinable  at  the 
tenant's,  and  not  the  landlord's  option,  at  the  end  of  seven 
years,  and  that  notwithstanding  that  the  landlord  had  given 
his  agent,  who  entered  into  the  agreement,  no  authority  to 
grant  a  lease  with  such  option  (?t). 

Inadequacy  of  consideration.  —  The  discretion  of  the  COUrt 
is  exercised  according  to  fixed  and  settled  rules,  and  mere 
inadequacy  of  consideration,  unless  it  be  so  gross  as  to 
amount  to  evidence  of  fraud,  is  not  a  ground  for  exercis- 
ing such  discretion  by  refusing  a  specific  performance  (o).^ 
Thus,  where  the  defendant  agreed  to  purchase  leasehold 
property  at  a  valuation  to  be  made  b}'  A.  B.,  who  made  a 
very  high  and  ap})arently  exorbitant  valuation,  viz.  at  thirty 
years'  purchase  for  a  mere  leasehold,  but  there  did  not 
appear  to  be  any  "  fraud,  mistake,  or  miscarriage,"  the  court 
decreed  a  specific  performance  with  costs  (p). 

Misrepresentations  and  "deceit.  —  If  the  plaintiff  induced 
the  defendant  to  enter  into  a  disadvantageous  contract  by 
misrepresentations    and  deceit,  his  action   for  specific  per- 

(0  Lancaster  v.  De  Trafford,  31  L.  85  ;  41  L.  J.,  Ch.  7:14.      The    tenant 

J.,  Ch.  554;  8  Jur.,  N.  S.  873;  and  had  entered  and  spent  money  on  the 

see  Davis  v.  Sliepherd,  L.  R.,  1   Ch.  farm. 

410.      But    see    contra,    Haywood   v.  (o)  Haywood    v.    Cope,   25    Bcav. 

Cope,  25  Beav.  140.  141,  151  ;  Callingham  v.  Callinsliam, 

(w)  Ogden  v.  Fossick,  .32  L.  J.,  Cli.  8  Ci.  &  Fin.  374^  Fry,  Chap.  VII. 

73.  (/,)  Collier  v.  Mason,  25  Beav.  200. 

(n)  Powell  V.  Smith,  L.  R.,  14  Eq. 

1  Inadequacy  of  consideration,  so  gross  as  to  lead  to  a  reasonable  conclu- 
sion of  fraud  or  mistake,  is  suffieient  to  prevent  specific  performance.  West- 
ern R.  R.  );.  Babcock,  t>  Met.  (Mass.)  340,  357,  358  {per  Shaw,  C.  J.). 

175 


*107  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  5. 

formance  will  be  dismissed  with  costs  (^).  But  the 
[*107]  mere  existence  *  of  circumstances  at  the  date  of  the 

contract  which  might  easily  have  led  to  fraud,  and 
the  want  of  any  professional  adviser  on  the  part  of  the 
defendant,  are  insufficient  to  defeat  the  right  to  specific  per- 
formance, if  no  fraud  be  shown  (;-).^ 

Misrepresentation  of  matter  of  law.  —  A  misrepresentation 
of  matter  of  law  will  not  disentitle  the  plaintiff.  Therefore 
where  A.,  who  was  under  an  agreement  to  take  the  lease  of 
a  house  containing  "  all  usual  covenants,"  agreed  to  assign 
all  his  interest  to  B.  and  forwarded  him  a  copy  of  the  origi- 
nal agreement,  and  afterwards  in  answer  to  inquiries  by  B., 
stated  that  the  lessee  would  not  have  to  do  substantial 
repairs :  upon  a  bill  filed  by  A.  for  a  specific  performance,  it 
was  held,  that  A.'s  statement  was  a  misrepresentation  of 
matter  of  law,  and  that  he  Avould  not  be  bound  or  prejudiced 

byitO). 

Concealment  of  material  facj;s.  —  A  specific  performance  will 
not  be  decreed  at  the  instance  of  a  person  who  has  obtained 
an  advantageous  agreement  for  a  renewed  lease  for  lives,  by 
knowingly  concealing  an  important  fact,  viz.,  that  the  last 
life  named  in  the  lease  was  then  in  extremis,  of  which  he  well 
knew  that  the  lessor  was  then  ignorant  (0-  So  where  the 
plaintiff  held  part  of  the  premises  as  lessee  only,  under  oner- 
ous covenants,  but  concealed  that  fact  and  represented  him- 
self to  be  owner  in  fee  (?0-  So  where  the  vendor  of  lease- 
holds had  received  a  notice   of  re-entry  in   default   of  the 

(7)  Dart  V.  &  r.  G7;j  ;  Willin£;liam  HSfi ;    Dart    V.    &   V.    fiOG;     sec    also 

r.    Joyce,    3    Ves.   168;    Clermont   r.  .Toliiison  i.  Smart,  2  Giff.  151;  Cook 

Tasburgh,  1  .lac.  &  W.  112  ;  Cadman  v.  Waufili,  III.  201. 
V.   Horner,  18  Ves.  10;  O'Herliliy  v.  (s)  Kendall  r.   Hill,  G  .Tnr.,  N.   S. 

Hedjres,  1  Sell.  &  Lef.  12.'5 ;  Tildesley  OGH;  M.  R.;  Great  Western  K.  Co.  r. 

V.  Clarkson,  .W  Reav.  410;  ?A    L.  .T.,  Cnpps,  5  Hare,  01. 
Ch.  :W!2;   Moxey  r.  Rifiwood,  12  W.  (0  EUard  r.  Ld.  Llandaff,  1  Rail  & 

K.  Hll  ;  10  .Iiir.,  N.  S.  .MC  ;  HifiRins  R.  241  ;  Pry,  ss.  242,  4G1-4G4. 
V.  Samels,  2  J.  &   H.  4G0 ;    7    L.   T.  (»)  Baseomb  r.  Rliillips,  20  L.  J., 

240.  Ch.  :580;  G  .Jiir.,  N.  S.  .'JG;j. 

(»•)  Lightfoot  r.   Heron,  :',  V.  &  C. 

1  Not  only  are  fraud  and  misrepresentation  siiflicicnt  objections  to  specific 
performance,  Walmsley  v.  Griffith,  10  A.  R.  (Ont.)  ;'.27  ;  but  false  and  material 
representations,  though  bona  Jiile,  are  also,  Thomson  v.  Longard,   1   Eq.  R. 

(\.  s.;  181. 

17G 


Ch.  IV.  S.  5.]         REFUSAL    OF   SPECIFIC    PERFORMANCE.        *108 

premises  being  repaired  as  therein  mentioned,  but  concealed 
such  notice  from  the  purchaser,  who,  however,  knew  the 
state  of  the  premises  (a;).  So  where  the  vendor  conceals 
from  the  purchaser  that  the  property  is  liable  to  be  taken 
under  the  powers  of  a  recent  railway  act  (ij').  So  where,  on 
an  agreement  for  sale  of  the  lease  of  a  colliery  for  8,000^.  in 
paid-up  shares,  there  was  a  private  arrangement  witli  the 
plaintiff,  not  communicated  to  the  shareholders,  that  2,500Z. 
of  these  should  be  given  as  a  bonus  to  the  directors  ;  specific 
performance  was  refused  (z). 

Public  nuisance.  —  The  existence  of  a  public  nuisance  in 
the  immediate  neighbourhood  of  a  house  agreed  to  be  taken 
as  a  residence,  and  rendering  it  unfit  for  that  purpose,  —  its 
existence,  however,  being  unknown  to  either  part}^  although 
easily  ascertainable  by  the  lessor,  —  seems  to  afford  no 
defence  to  his  suit  for  a  specific  performance,  although  it  will 
induce  the  court  to  try  the  case  strictly  (a). 

Illegal  contract.  —  If  the  agreement  is  illegal  the 
court  will  not  decree  a  specific  *  performance  (li).  [*108] 
But  the  agreement  must  be  legal  or  illegal,  and  it 
is  not  within  the  discretion  of  the  court  to  refuse  specific 
performance  because  an  agreement  savours  of  illegality;  it 
must  be  shown  to  be  illegal  (<?).  Where  a  stipulation  is 
omitted  from  the  written  agreement,  upon  the  supposition 
that  it  is  illegal  (c^),  or  Avhere  a  party  having  bargained  for 
the  insertion  of  a  particular  term,  knowingly,  and  without 
being  fraudulently  induced  thereto,  executes  an  agreement 
from  which  it  is  omitted  (e),  equity  will  hold  the  omission 
binding. 

Plaintiff  no  sufficient  title.  —  By  the  Vendor  and  Purchaser 
Act,  1874,  sect.  2,  rule  1,  it  is  enacted  that  "  under  a  con- 

{x)  Stevens  v.  Adamson,  2  Stark.  671;  Dr.  Bettesworth  r.  Dean  and  C. 

R.  422.  of  St.  Paul's,  Select  Cas.  Ch.  66. 

(y)  Ballard    v.  Way,   1    M.   &  W.  (c)  Aubin  v.  Holt,  2  Kay  &  J.  70. 

520 ;  Fry,  s.  507.  {d)  Ld.  Irnhani  v.  Child,  1   Bro.  C. 

(s)  Maxwell   v.  Port   Tenant,  &c.,  C.  92 ;  6  Ves.  332 ;  Sug.  V.  &  P.  173 

Co.,  24  Beav.  495.  (14th  ed.)  ;   Dart  V.  &  P.  008. 

(a)  Lucas   v.  James,  7  Hare,  410,  (p)  Shelburne  v.  Inchiquin,  1  Bro. 

418;  Dart  V.  &  P.  681,  695.  C.  C  350;  Jackson  v.  Cator,  5  Ves. 

(6)  Fry,  Chap.  IX.;  Dart  V.  &  P.  688;  Rich  v.  Jackson,  4  Bro.  C.  C. 

514,  518 ;  Dart  V.  &  P.  668. 

177 


*108  AGREEMENT   FOR    LEASE.  [Ch.  IV.  S.  5. 

tract  to  grant  a  terra  of  years,  whether  derived  or  to  be 
derived  out  of  a  freehold  or  leasehold  estate,  the  intended 
lessee  shall  not  be  entitled  to  call  for  the  title  to  the  free- 
hold,'' and  b}^  the  Conveyancing  and  Law  of  Property  Act, 
1881,  44  &  45  Vict.  c.  41,  s.  13,  sulvs.  (1),  that  "  on  a  con- 
tract to  grant  a  lease  for  a  term  of  years  to  be  derived  out  of 
a  leasehold  interest,  with  a  leasehold  reversion,  the  intended 
lessee  shall  not  have  the  right  to  call  for  the  title  to  that 
reversion ; "  but  by  sub-s.  (2),  this  section  applies  only  "  if 
and  so  far  as  a  contrary  intention  is  not  expressed  in  the 
contract,  and  shall  have  effect  subject  to  the  terms  of  the 
contract  and  to  the  provisions  therein  contained,"  and  by 
8ub-s.  (3),  "  to  contracts  made  after  the  commencement  of 
the  act,"  i.e.  (by  s.  2)  on  or  after  the  1st  January,  1882.  If 
a  party  agrees  to  let  an  estate,  and  brings  an  action  for  the 
specific  performance  of  the  agreement,  it  will  be  dismissed 
with  costs,  if,  in  the  course  of  the  action,  it  should  appear 
that  the  intended  lessor  had -a  defective  title,  even  though 
the  objections  on  which  the  refusal  to  take  the  lease  was 
grounded  were  frivolous  and  untenable  (/).^  Where  it 
appears  that  the  plaintiff  is  unable,  from  causes  which  he 
cannot  control,  to  make  a  good  title,  a  demurrer  will  be 
allowed,  and  the  plaintiff  will  not  be  permitted  to  bring  the 
cause  to  a  hearing  on  the  chance  that  he  may  by  that  time, 
or  before  certificate,  be  enabled  to  sue  the  defendant  (,^). 
A  purchaser  of  leasehold  premises  will  not  be  compelled  to 
complete  liis  contract  if  the  title  to  the  reversion  expectant 
on  the  lease  is  admittedly  the  subject  of  contest,  so  that 
there  is  a  strong  probability  of  his  being  involved  in  litigation 
in  consequence  of  disputed  claims  to  the  ground-rents  (1i). 

(/•)  Bascomb  v.  Phillips,  29  L.  J.,  (/i)  Peglcr  v.  White,  33  Beav.  403  ; 

Ch.  380  ;  «  Jur.  N.  S.  IJO:).  33  L.  J.,  Ch.  5G9. 

(17)  Reeves  V.  Greenwich   Tanning 
Co.",  2  H.  &  M.  54. 

'  Defect  ill  title. —  Defect  in  title  is  a  <1efence  in  a  suit  upon  a  eontract 
of  sale.  liichniond  r.  (iray,  3  Allen  (Mass.)  2-i.  So  is  a  doubtful  title. 
Jeffries  r.  Jeffries,  117  Mass.  1H4  ;  Butts  v.  Andrews,  130  Id.  221  ;  Cuuninp- 
ham  I'.  Blake,  121  Id.  333.  A  mere  possibility  that  a  defect  in  title  may  turn 
up  (as  that  debts  against  an  estate  may  be  discovered)  is  not  sullicient.  Hague 
V.  Harmony  Grove  Cemetery,  10b  Mass.  400,  402. 

178 


Ch.  IV.  S.  T).]       REFUSAL   OF    SPECIFIC    PERFORMANCE.  *109 

Tf  it  appear  to  the  court  that  the  plaintiff  as  sole  act- 
ing executrix  had  power  to  let  *  or  sell,  a  specific  [*109] 
performance  may  be  decreed,  notwithstanding  one  of 
the  conveyancing  counsel  of  the  court  has  given  a  contrary 
opinion  (z).  An  appellate  court,  notwithstanding  its  impres- 
sion in  favour  of  the  vendor's  title,  will  not  decree  specific 
performance  in  oj^position  to  the  decision  of  the  court  below 
that  a  good  title  cannot  be  made,  unless  such  decision  be 
clearly  wrong  (7c).  But  the  purchaser  will  be  compelled  to 
take  a  title  which  appears  to  the  court  of  appeal  to  be  good, 
although  the  judge  of  the  court  below  was  of  a  different 
opinion,  that  fact  not  being  sufficient  to  constitute  a  doubtful 
title  (?).  Even  at  law  there  was  no  remedy  where  tlie  plain- 
tiff's title  was  so  bad  or  doubtful  that  a  specific  performance 
would  not  be  decreed  in  equity  (m). 

Unreasonable  hardship.  —  Where  a  decree  for  specific  per- 
formance would  impose  serious  and  unreasonable  hardship 
on  the  defendant  the  court  will  sometimes  refuse  to  inter- 
fere, and  only  award  the  plaintiff  damages ;  but  much  de- 
pends on  the  nature  of  the  hardship,  and  when  and  how  it 
arose  (w).  Thus,  in  Costigan  v.  Hastier  (w),  where  a  mort- 
gagor had  contracted  to  grant  a  lease,  but  failed  to  obtain  the 
mortgagee's  consent,  as  he  expected  to  do,  and  was  also  shown 
to  be  unable  to  redeem,  the  intending  tenant  failed  to  obtain 
a  decree  for  specific  performance,  and  only  succeeded  in  get- 
ting the  contract  rescinded.  But  in  Long  v.  Bowring  (w), 
where  the  defendant  contracted  to  grant  a  sub-lease,  and  to 
pay  to  the  intended  sub-lessee  1,000Z.  by  way  of  liquidated 
damages  if  he  should  fail  to  obtain  the  assent  of  his  landlord 
to  the  sub-lease,  it  was  held  that  he  was  not  entitled  to  refuse 
to  apply  to  his  landlord  for  such  assent,  and  by  paying  the 

(«)  Hamilton  v.  Buckmaster,  L.  R.,  &  W.  8  ;  and  see  Hamilton  v.  Buck- 

3   Eq.    323,    Wood,   V.-C.  ;    but    see  master,  supra. 

Stevens  v.  Austen,  3  E.  &  E.  685;  30  (ni)  Simmons  v.  Heseltine,  5  C.  B., 

L.  J.,  Q.  B.  112.  N.  S.  554  ;  28  L.  ,T.,  C.  P.  129  ;  Stevens 

(k)  Collier  v.  M'Bean,  35  L.  J.,  Ch.  v.  Austen,  3  E.  &  E.  685 ;  30  L.  J.,  Q. 

144.     But  see  contra,  Beioley  v.  Car-  B.  212;  Jeakes  v.  White,  0  Ex.  Ch. 

ter,  L.  R.  4  Ch.  Ap.  230,  236.  173. 

(/)  Beioley  r.  Carter,  L.  R.,  4  Ch.  (»)  Costigan  v.  Hastier,  1   Sch.  & 

Ap.  230;  Sheppard  r.  Doolan,  3  Dru.  Lef.  166;  Long  ;•.  Bowring,  33  Beav. 

585;  Fry,  Chap.  VI. 

179 


*110  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  5. 

1,000Z.  to  escape  a  decree  for  specific  performance.  And  the 
general  rule  is,  that  a  hardsliip  which  arises  subsequently  to, 
or  independently  of,  the  contract  will  not  be  taken  into  con- 
sideration (o). 

Injury  to  property  by  fire,  &c.  —  The  accidental  destruction 
by  fire  or  tempest  of  any  of  the  property  agreed  to  be  de- 
mised would  seem  to  afford  no  defence  to  an  action  for  spe- 
cific performance.  The  rule  of  Paine  v.  Meller  (j^),  and 
similar  cases,  that  a  party  who  enters  into  a  binding  contract 
for  the  purchase  of  an  estate,  becomes  in  equity  the  owner 
of  it,  and  is  entitled  to  any  profit  and  subject  to  any  loss 
which  may  afterwards  occur,  is  applicable  to  a  contract  for 
a  lease.  This  was  clearly  recognized  in  a  case 
[*110]  *  heard  before  the  Judicial  Committee  of  the  Privy 
Council  in  1845  (^q),  although  the  plaintiff  (the  in- 
tended landlord)  failed  to  obtain  specific  performance  on  the 
ground  of  non-performance  on  his  part  of  an  agreement  to 
put  the  premises  in  repair. 

Failure  to  give  possession.  —  Where  the  intended  could  not 
give  possession  on  the  appointed  day,  and  time  was  of  the 
essence  of  the  contract,  his  bill  for  a  specific  performance 
was  dismissed  (r).  Where  the  intended  tenant,  knowing 
that  the  premises  were  greatly  out  of  repair,  stipulated  for 
certain  specific  repairs,  which  were  done  accordingly,  and  he 
took  possession  after  being  warned  that  much  more  expen- 
sive repairs  were  required,  and  it  turned  out  on  a  subsequent 
examination  that  it  was  necessary  to  take  down  and  rebuild  a 
wall  at  great  expense,  specific  performance  was  decreed  (s). 

Breach  of  trust.  —  Where  trustees  have  inadvertently  en- 

(o)  Evans  v.  Walshc,  2  Sch.  &  Lcf.  time  for  performance,  failed    to   re- 

419;  Revcll  v.   Ilusscy,  2  IJall  &   B.  cover  ilania<;es,  is  distinguishable  on 

280;  Lavvder  v.  Blackford,  Beat.  522;  the  ground  tiiat  tiie  existence  of  tlie 

Fry,  s.  255 ;  Helling  f.  Lumley,  IJ  De  music  hall  was  an  implied  essential 

Gex  &  .7.  403.  condition  of  the  agreement. 

(p)  6  Ves.  349.  (r)  Tilley  >:  Thomas,  L.  R.,  3  Ch. 

(7)  Counter     1;.     Macpherson,     5  Ap.  01  ;  \()  W.  R.  1<)0. 

Moore,  P.  C.  83;  Taylor  v.  Caldwell,  (s)  Cook  v.  Waugh,  2  Giff.  201  ;  0 

3   B.   &   S.   820,  where    the   plaintitT  Jur.,   N.   S.  50(1;    comi)arc    this    case 

agreed   to  let  a  music   hall  for  four  with  Tildesley  r.  Clarkson,  30  Beav. 

days,  and,  the  music  hall  having  been  419;  31  L.  J.,  Ch.  302. 
burnt  down   between  ajjreement  and 

180 


Cii.  IV.  S.  5.]       REFUSAL   OF   SPECIFIC   PERFORMANCE.  *111 

tered  into  a  contract  to  grant  or  to  renew  a  lease,  in  excess 
of  their  power,  and  wliicli  if  performed  would  amount  to  a 
breach  of  trust,  specific  performance  will  not  be  decreed  (//). 
In  Sneesby  v.  Tliorne,  one  of  two  executors,  erroneously  be- 
lieving that  he  was  acting  with  the  authority  of  the  other, 
contracted  to  sell  a  leasehold  house,  part  of  the  testator's 
estate :  it  was  held  that  the  purchaser  could  not  enforce 
a  specific  performance,  and  it  seems  doubtful  whether  he 
could  have  done  so  if  the  executor  had  been  under  no  mis- 
apprehension (it).  A  feme  covert,  being  one  of  several 
devisees  for  sale,  cannot  bind  herself  by  a  contract  (x).  A 
contract  for  a  lease  by  a  mortgagor  cannot  be  enforced  by 
him  unless  he  procure  a  reconveyance  of  the  mortgage,  or 
procure  the  mortgagee  to  join  in  or  confirm  the  lease  (?/), 
but  in  such  case  the  court  may  decree  the  damages  sustained 
and  cause  them  to  be  assessed  (/).  Where  a  mortgagee  agreed 
with  the  plaintiff  to  grant  him  a  lease,  upon  the  mutual  un- 
derstanding that  the  mortgagor  should  concur,  but  tlie  mortga- 
gor refused  concurrence,  the  court  held,  that  the  plaintiff  was 
not  entitled  to  insist  on  having  a  lease  from  the  mortgagee 
alone :  and,  further,  that  he  was  not  entitled  to  damages  (a). 

Forfeiture.  —  The  possibility  of  a  forfeiture  being  in- 
curred if  the  intended  lessor  *  perform  his  agreement  [*111] 
is  no  defence  to  an  action  for  specific  performance  (5). 
But  where  a  lessee  sold  certain  lots  of  building  ground,  and 
agreed  to  make  a  road,  which  it  was  afterwards  found  he 
could  not  do  without  incurring  the  risk  of  forfeiting  a  piece 
of  leasehold  land  through  which  it  was  to  pass,  or  of  being 
sued  by  the  lessor,  the  court  granting  the  purchaser  specific 
performance  of  the  agreement  for  sale  refused  to  enforce 
the  stipulation,  but  gave  him  compensation  as  to  that  (c). 

(0  Byron  i;.  Acton,  1  Bro.  P.  C.  186;  (s)  IIowc  v.  Hunt,  31    Bear.  420; 

Hartnell  v.  Yielding,  2  Scii.  &  Lef .  549 ;  32  L.  J.,  Ch.  30. 

Bellringer  v.  Blagrave,  1  De  Gex  &  (a)  Franklinski  v.  Ball,  33   Beav. 

S.  63;    Haywood  v.  Cope,  25   Bear.  560;  34  L.  J.,  Cli.  153. 
153;    Phillips  r.   Edwards,  33  Beav.  (6)  Helling  r.  Lunilcy,  3  De  Gex  & 

440  ;  Fry,  s.  247 ;   Dart  V.  &  P.  640.  J.  493. 

{ii)  Sneesby  v.  Thome,  7  De  Gex,  (c)  Peacock   v.    Pcnson,    11   Beav. 

M.  &  G.  399.  355;  Helling  v.  Lumley,  supra :  Fry, 

(a:)  Avery  r.  Griffin,  L.R., 6  Eq.  606.  s.  201.     See  also  Wilmott  r.  Barber, 

ly)  Costigan  v.  Hastier,  1   Sch.  &  L.  R.,  15  Ch.  D.  96. 


Lef.  160. 


181 


*111  AGREEMENT  FOE   LEASE.  [Ch.  IV.  S.  5. 

Where  a  tenant  for  life  contracts  to  grant  a  lease  for  a  longer 
period  than  he  has  power  to  grant,  the  coui't  will  decree  him 
to  grant  such  lease  as  he  is  able  to  make  (c?),  with  compen- 
sation for  the  residue  of  the  agreed  terra  (e).  If  a  copy- 
holder were  to  agree  to  grant  a  lease  for  a  longer  term  than 
the  custom  allowed,  he  would,  it  seems,  be  compelled  to 
effectuate  his  contract  in  substance,  by  from  time  to  time 
executing  leases  for  such  terms  as  he  could,  till  he  had  made 
up  the  term  contracted  for  (/). 

Impossibility.  —  The  court  never  decrees  performance  of 
that  which  is  impossible  to  be  done  (^). 

Fraud  ;  surprise  ;  mistake.  —  The  contract  must  not  only  be 
legal,  but  it  must  not  be  hard  or  unreasonable  (/*)  ;  it  must 
be  free  from  fraud  and  surprise  («*)  and  from  mistake  (/c).^ 
In  Jeffreys  v.  Fairs  (/),  the  plaintiff  agreed  to  grant  the 
defendants  a  lease  of  a  vein  of  coal,  called  the  Shenkin  vein, 
"about  two  feet  thick,  with  the  overlying  and  underlying 
beds  of  clay,"  at  a  certain  dead  rent  and  royalties ;  it  was 
held  that  this  agreement  could  be  enforced  against  the 
defendants,  whether  the  Shenkin  vein  existed  or  not.  But 
this  was  said  to  be  "  because  the  defendants  had  in  fact  got 
all  they  bargained  for,  which  was  the  chance  of  finding  the 
vein  of  coal  under  the  particular  property,"  so  that  it  would 
have  been  "  against  reason,  against  justice,  and  against  the 

(f/)  As  to  lease  by  tenant  for  life,  (/))  Tildesley  v.  Clarkson,  30  Beav. 

see  Ch.  I.,  Sect.  4,  ante.  419;  31  L.  J.,  Ch.  302. 

(e)  Cleaton  v.  Govver,  Finch,  104;  (i)  Fry,  s.  475;  Dart  V.  &  P.  674; 

Dale  V.  Lister,  cited  Ki  Ves.  7  ;  Han-  Walters  u.  Morgan,  3  De  Gex,  F.  &  J. 

bury  r.  Litchfield,  2  Myl.  &  K.  029;  718. 

Fry,  8.  299 ;  Dart  V.  &  P.  682,  083,  (k)  Fry,  Chap.  XIV. ;  Dart  V.  &  P. 

685;  Painter  v.  Newby,  11  Hare,  20;  005,  074;   Wood  r.  Scartli,  2  Kay  & 

21  &.  22  Vict.  c.  27,  s.  2.  J.  33;  Brown  v.  Marquis  of  Sligo,  10 

(/)  Paxton    I'.    Newton,  2    Sm.  &  Ir.  Cli.  1!.  1. 
Giff.  437  ;  Fry,  s.  609.  (/)  L.   11.,  4  Cli.  D.  448,  per  Bacon, 

(y)  Green  v.  Sniitii,  1  Atk.  572.  V.-C. 

'  Mistake.  —  Mistake  made  by  vendor  in  his  calculations,  from  miscarriage 
of  exi)ectation8  which  he  had  reason  to  believe  were  liable  to  miscarry,  is  not 
sufficient,  Western  K.  R.  v.  Babcock,  0  Met.  346,  357,  358  ;  neither  is  a  mis- 
take by  him  as  to  the  quantity  of  his  land,  made  by  his  own  fault,  Davis  v. 
Parker,  14  Allen  (Ma.ss.)  94. 

"He  must  show  an  honest  nustake,  not  imputable  to  his  own  gross  negli- 
gence,"/jcr  Shaw,  C.  J.,  in  Western  U.  K.  v.  Babcock,  sujim,  p.  352. 

182 


Ch.  IV.  S.  5.]      REFUSAL   OF   SPECIFIC   PERFORMANCE.  *112 

whole  chain  of  authorities,  to  let  the  defendants  off  their 
bargain."  A  mistake  of  law  is  not  sufficient  (w),  nor  a  mis- 
take as  to  the  legal  consequences  of  an  act  (w).  A  substan- 
tial misdescription  in  the  particulars  of  sale  will  entitle  the 
purchaser  to  avoid  the  contract  even  at  law  (o)  :  but  he  must 
do  so  immediately  (p).  In  equity  such  a  contract  will 
not  be  enforced  *  against  him  (5').  Where  there  has  [*112] 
been  a  misrepresentation  made  by  the  vendor,  the  court 
applies  the  rule  caveat  emptor  with  great  caution  (r).  If 
the  written  contn\ct  omits  any  material  term,  or  inaccurately 
expresses  the  real  intentions  of  the  parties,  the  court  will 
not  enforce,  with  a  variation  to  correct  the  mistake,  at  the 
instance  of  the  party  in  whose  favour  such  correction  would 
oj)erate  (s).  Thus,  where  a  person  has  contracted  for  the 
assignment  of  a  lease  he  will  not  be  decreed  to  take  the 
assignment  of  an  underlease  even  with  compensation  (^).  If 
he  has  contracted  for  an  estate  in  possession,  he  will  not  be 
decreed  to  take  a  reversionary  lease  with  compensation  (i^). 
If  he  has  contracted  for  a  specific  term,  ex.  gr.  sixteen  years, 
he  will  not  be  decreed  to  take  a  considerably  less  term, 
ex.  gr.  six  years  with  compensation  (.r).  By  an  agreement 
in  writing,  A.  agreed  to  demise  to  B.  premises  which  were 
then  in  lease  to  C,  and  B.  undertook  to  procure  a  surrender 
from  C.  of  the  existing  lease  and  to  accept  a  new  lease. 
C.  having  afterwards  refused   to  surrender,  A.  filed  a  bill 

(m)  Fry,     s.     508;      Croombe     v.  y.  Cooke,  1  Sch.  &Lef.  22, 38;  Manser 

Lediard,  2  Myl.  &  K.  251.  v.  Back,  6  Hare,  447;  Squire  i:  Cam- 

(n)  Great     Western     R.     Co.     v.  pell,  1   M/1.   &   Cr.  480;    Emmet    v. 

Cripps,  5  Hare,  91.  Dewhurst,  3  Myl.  &  Cr.  58";  Davies 

(o)  Flight  V.  Booth,  1  Bi-ig.  N.  C  v.  Fitton,  2  Dru.  &  W.  225 ;  Nurse  v. 

376;  Wood  v.  Keep,  1  F.  &  F.  331.  Lord  Seymour,  13  Beav.  254. 

(p)  Selway  v.  Fogg,  5  M.  &  W.  83.  (t)  Madeiey  v.  Bootli,  2  De  Gex  & 

((/)  Dimiuock   v.  Hallett,  L.  R.,  2  S.    718;   Darlington    v.    Hamilton,    1 

Ch.  Ap.  21 ;  30  L.  J.,  Ch.  146.  Kay,    550;    Warren    v.    Richardson, 

()•)  Colby    V.   Gadsden,   15   W.    K.  You.   1;    Fry,  ss.  803,    858;    Anon., 

1185;  17  L.  T.  97.  Sug.  V.  &  P.  300  (14th  cd.)  ;  Dart  V. 

(s)  Fry,  ss.  519-535 ;  Dart  V.  &  P.  &  P.  90,  089. 
663,689;  Rich  v.  Jackson,  2  Bro.  C.  («)  Lineham  v.   Cotter,   7   Jr.   Eq. 

C.  514;  0  Ves.  334;  Roberts  v.  Col-  176;  Sug.  V.  &  P.   304   (14th  ed.)  ; 

lins,    7    Ves.    130,    133  ;    Woolam    v.  Dart  V.  &  P.  689. 
Hearn,  7  Ves.  211;    Winch    v.  Win-  (x)  Long   v.  Fletcher,  2   Eq.  Cas. 

Chester,  1  V.  &  B.  375,  378;  Higgin-  Abr.  5;  Dart  V.  &  P.  690. 
son  V.  Clowes,  15  Ves.  510,  523;  Clinan 

183 


*113  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  5. 

against  B.  for  a  specific  performance,  ivith  a  modification.  It 
was  held,  upon  demurrer,  that  the  bill  could  not  be  sus- 
tained (?/).  On  the  other  hand,  if  the  opposite  party  files 
the  bill,  the  court  will  not  decree  a  specific  performance 
unless  he  submits  to  such  alterations  or  compensation  as  the 
court  thinks  ought  to  be  made  upon  a  consideration  of  the 
parol  evidence  (2).  Where  a  plaintiff  alleges  a  written  agree- 
ment with  a  parol  variation  in  favour  of  the  defendant,  and 
offers  to  perform  the  agreement  with  the  variation,  the  court 
will  enforce  specific  performance,  although  the  defendant 
insists  on  the  statute  (a).  In  one  case,  A.  agreed  to  grant 
the  lease  of  a  public-house  to  B.,  "  the  lessor  to  make  certain 
alterations  suggested  and  to  make  and  form  a  spirit-vault, 
and  put  in  plate-glass  windows,  and  to  do  everything 
therewith  necessary  at  his  own  expense,  and  paint  new  the 
outside  of  all  wood-work,  as  well  as  put  the  slates,  chimney- 
pots and  roofing  in  thorough  repair."  B.,  by  his  bill,  of- 
fered to  Avaive  the  performance  of  the  agreement  so 
[*113]  *  far  as  regarded  any  alterations  not  specially  men- 
tioned therein.  It  was  held,  that  he  was  entitled  to  a 
decree  for  specific  performance,  minus  the  waiver  (5).  Where 
the  defendant  relies  on  a  parol  variation  of  a  written  con- 
tract, as  a  defence,  he  must  prove  such  part  performance  of 
the  agreement  as  altered  as  would  induce  the  court  to  enforce 
it  as  an  oi'iginal  independent  agreement  (r). 

"Where  anything  remains  to  be  decided  by  third  persons.  —  If 
the  amount  of  premium  or  rent  to  be  paid,  or  any  other 
material  point,  is  by  the  agreement  left  to  be  determined  by 
third  persons,  ex.  gr.  arbitrators  or  surveyors,  and  that  has 
not  been  done  before  suit,  the  court  will  not  decree  specific 
performance,  having  no  power  to  compel  such  third  persons 

(;y)  Bcoston  v.  Stutley,  20   L.   J.,  («)  Martin  v.  Pycroft,  2  r>e  Gex, 

Cli."  156,  Wood,  V.-C.  M.  &  Cx.  785 ;  Dart  V.  &  I'.  06:5,  000. 

(?)  Joyncs  V.  Statham,  3  Atk.  388;  (/))  Middloton  r.  Greenwood,  2  De 

Barnard  v.  Gave,  20  Beav.  253 ;  Clarke  Gex,  J.  &  S.  142. 

V.  Moore,  IJon.  &  Lat.  723;  Browne  (c)  Legal    v.    Miller,    2   Vcs.   200; 

V.  Marquis  of  SHro,  10  Ir.  Ch.  K.  1  ;  Trice   v.    Dyer,    17    Ve.s.    350,    304; 

Londoti   and    Birininfjliam    R.   Co.    v.  Rol)inson  v.  Vt\>ic,  :>  Kiis.';.   121  ;  Stig. 

Winter.  Cr.  &  Pli.  57.  02  ;  James  v.  V.  &  1\  105  (14tli  ed.)  ;  Dart  V.  &  P. 

Liclifield,  L.  K.,  0  Eq.  51  ;  Fry,  s.493;  069. 
Dart  V.  &  V.  004,  009,  080. 

184 


Ch.  IV.  S.  5.]      REFUSAL   OF   SPECIFIC   PERFORMANCE.  *114 

to  perform  their  duty :  it  therefore  treats  the  contract  as  too 
imperfect  to  be  specifically  enforced  (cZ).  But  after  such 
matter  has  been  so  determined,  the  contract  may  be  enforced 
by  decree  even  where  the  sum  fixed  appears  to  be  exorbitant, 
no  fraud,  mistake  or  miscarriage  being  proved  (e).  B. 
agreed  to  grant  a  lease  to  W.  as  soon  as  W.  should  have 
built  a  house  with  the  necessary  outbuildings  on  the  land,  of 
the  value  of  Xl,400  at  the  least,  "according  to  a  plan  to 
be  submitted  to  and  approved  by  B."  W.  agreed  to  build 
such  house  and  take  the  lease ;  no  plan  was  submitted  to  or 
approved  by  B.,  but  he  was  ready  and  willing  to  approve 
of  any  reasonable  plan ;  under  such  circumstances,  a  bill 
filed  by  B.  for  a  specific  performance,  was  dismissed,  with 
costs  (/). 

When  contract  conditional.  —  If  a  contract  for  a  lease  be 
made  conditional  on  the  lessor's  ability  to  grant  it,  an  action 
for  specific  performance  cannot  be  supported  without  proof 
of  the  lessor's  ability ;  or  that  he  has  received  part  of  the 
agreed  premium,  and  interest  on  the  balance,  and  so  in 
effect  estopped  himself  from  relying  on  the  condition  (</). 
But  the  plaintiff  may  be  entitled  to  an  equitable  lien  on 
the  land  for  the  sums  expended  on  the  faith  of  the  agree- 
ment, with  interest  thereon,  and  to  consequential  relief  (A). 
Where  the  lessor's  consent  or  licence  is  necessary  to  an 
assignment  of  a  lease,  it  is  the  vendor's  duty  to  obtain  it, 
and  if  he  cannot  do  so  before  the  commencement  of  an  ac- 
''ion  for  specific  performance  he  cannot  maintain  such 
action  (i).     The  same  rule  *  applies  on  the  sale  of  a  [*114] 

{d)  Millies  V.  Grey,  14  Ves.  450  ;  ( /")  Brace   v.  Wehnert,   25   Bcav. 

Darby    if.  Whittaker,   4   Drew.   134 ;  348.     But  see  Mayor,  &c.,  of  London 

Tillett  V.  Charing  Cross  Bridge  Co.,  v.  Soiidigate,  38  L.  J.,  Ch.  141. 

2(5   Beav.   419;   28   L.  J.,  Ch.   803;  (y)  Abbot  v.  Blair,  8  W.  R.  672; 

Fry,  ss.  215,  216,  218;    see  also  Col-  Baunian  v,  Matthews,  4  L.  T.,  N.  S. 

lins  V.  Collins,  26  Beav.  .306  ;  28  L.  J.,  783,  L.  C. 

Ch.  184  ;  Jackson  v.  Jackson,  1  Sm.  (/()  Middleton  v.  Magnay,  2  H.  & 

&  Giff.   184  ;   Vickers  v.  Vickers,  L.  M.  233  ;    12  W.  R.  706  ;   Hindlcy  v. 

R.,  4  Eq.  529  ;  36  L.  J.,  Ch.  946.  Emery,  L.  R.,  1  Eq.  52  ;  35  L.  J.,  Ch. 

(e)  Collier  v.  Mason,  25  Beav.  200  ;  6 ;  Turner  v.  Marriott,  L.  R.,  3  Eq. 

Ormes  v.  Beadel,  2  Giff.  166 ;  30  L.  744  ;  15  W.  R.  420. 

J.,  Ch.  1  ;  Blackett  v.  Bates,  34  L.  J.,  (;)  Forrer  v.  Nash,  35  Beav.  167; 

Ch.  515  ;  2  H.  &  M.  270,  610 ;  L.  R.,  14  W.  R.  8 ;  and  see  post,  Ch.  XVII., 

1  Ch.  Ap.  117.  Sect.  2. 

185 


*114  AGREEMENT   FOR    LEASE.  [Ch.  IV.  S.  5. 

public  house  as  a  going  concern,  when  the  plaintiff  is 
not  in  a  condition  to  obtain  a  transfer  of  the  licences  at  or 
before  the  time  fixed  for  completion  of  the  sale  (^). 

Agreement  not  enforcement  for  uncertainty.  —  An  agreement 
to  take  a  lease  of  a  house,  if  put  into  thorough  repair,  and 
the  drawing-room  "handsomely  decorated  according  to  the 
present  style,"  is  too  uncertain  to  be  enforced  by  a  decree 
for  a  specific  performance  (?)  ;  ^  but  where  a  lessor  agreed  to 
let  a  house,  and  to  put  it  into  decorative  repair,  and  after- 
wards refused  to  fulfil  his  contract,  the  court,  at  the  instance 
of  the  lessee,  who  had  entered  into  possession,  decreed  spe- 
cific performance  of  the  agreement,  with  an  inquiry  whether 
the  agreement  as  to  decorative  repair  had  been  performed ; 
and  if  not,  decreed  that  the  lessor  should  compensate  the 
lessee  in  damages  (?n).  In  Faulkner  v.  Llewellyn,  B.  agreed 
with  C.  to  take  a  lease  of  a  house  which  C.  was  building, 
when  it  was  "  complete,  finished,  and  fit  for  habitation  :  "  B. 
took  possession,  but  afterwards  found  various  objections  to 
it,  contending  that  it  was  not  properly  finished.  The  matter 
being  referred  to  an  expert,  he  reported  that,  although  there 
might  be  some  objections,  yet  the  house  was  "complete,  fin- 

(k)  Day  ?;.  Luhke,  L.  R.,  5  Eq.  33G;  M.  &  G.  328 ;  and  see  Jeffery  v.  Ste- 

37  L.  J.,  Ch.  330 ;  Claydon  v.  Green,  phens,  6  Jur.,  N.   S.  947;    8  \V.  R. 

L.  R.,  3  C.  P.  511  ;   37  L.  J.,  C.  P.  427,  M.  R. 

511 ;  Modlen  v.  Snowball,  4  De  Gex,  (m)  Samnda  v.  Lawford,  4  Giff.  42; 

F.  &  J.  143.  8  Jur.,  N.  S.  739. 

(/)  Taylor  v.  Portington,  7  De  Gex, 

1  Uncertainty  is  a  fatal  objection  to  specific  performance,  even  though 
there  has  been  part  performance.  Parkhurst  v.  Van  Cortlandt,  1  Johns.  Ch. 
(N.  Y.)  273,  283,  28G. 

Alternative  covenants  to  renew  or  pay  for  improvement  cannot  be  en- 
forced absolutely.     Hutchinson  v.  Boultoii,  3  Chy.  (Ont.)  391. 

Lessor  cannot  compel  lessee  having  simple  purchase  option  to  purchase. 
M'Calmont  c.  Mulhali,  4  Allen  (N.  li.j  200. 

Lessee  having  conditional  option  cannot  compel  lessor  to  sell  unless  he  first . 
fulfil  the  conditions  on  his  own  part,  Forbes  v.  Connolly,  5  Chy.  (Ont.)  657, 
the  conditions  in  this  case  being  covenants  to  pay  rent,  &c.,  and  not  having 
been  kept,  bill  was  dismissed. 

The  following  agreement  was  held  to  constitute  an  unconditional  purchase 
option,  viz. :  "  And  the  said  lessor  hereby  agrees  to  give  to  tlie  said  lessee  the 
first  privilege  of  purchasing  the  said  premises  at  any  time  witliin 
at  the  i)rice  of  payable  in  five  yearly  instalments,"  Casey  i;.  llanlon, 

22  Chy.  (Ont.)  445;  and  breach  of  covenants  of  lessee  were  no  defence  to 
suit  for  performance. 

186 


Ch.  IV.  S.  5.]      REFUSAL   OF   SPECIFIC    PERFORMANCE.  *115 

ished,  and  fit  for  habitation."  A  decree  for  a  specific  per- 
formance of  the  agreement  was  granted  (w).  W  lie  re  terms 
for  letting  farms  provided  that  all  materials  required  for 
buildings  proposed  to  be  built,  or  that  might  thereafter  be 
built,  should  be  led  at  the  expense  of  the  tenant ;  that  the 
landlord  should  drain,  the  tenant  leading  tiles ;  that  gates, 
buildings,  "  &c."  should  be  left  in  repair  by  the  tenant,  the 
landlord  finding  new  gates  when  required;  and  the  landlord 
reserved  to  himself  all  customary  rights  and  reservations, 
such  as  liberty  to  cut  and  plant  timber,  search  for  and  work 
mines  or  minerals,  "  &c."  allowing  the  tenant  for  any  reason- 
able damages  :  —  It  was  held,  that  these  stipulations  did  not 
render  the  agreement  uncertain,  so  as  to  be  incapable  of 
being  enforced  specifically  (o). 

No  decree  for  performance  of  part  exceptions.  —  The  COUrt 
will  not  decree  specific  performance  of  part  of  a  contract  (p), 
unless  the  residue  has  been  already  performed  ((/),  or  the 
unperformed  part  is  separable  and  divisible  from  the  rest, 
and  does  of  itself  form  a  complete  contract.  Thus,  in  Green 
V.  Low,  the  owner  of  a  plot  of  ground  agreed  to 
grant  a  lease  of  it  to  A.  as  soon  as  the  *  latter  had  [*115] 
erected  a  villa  thereon,  but  it  was  stipulated  that  if 
A.  should  not  perform  the  agreement  on  his  part,  the  agree- 
ment for  a  lease  was  to  be  void,  and  that  the  owner  might 
re-enter.  A.  was  to  insure  in  a  particular  way,  and  he  was 
to  have  the  option  of  purchasing  the  fee  within  two  years, 
upon  certain  terms.  A.  erected  the  villa,  but  insured  in  a 
wrong  office,  and  in  a  wrong  name.  It  was  held  that  the 
contract  for  a  lease  was  independent  of  the  option  to  pur- 
chase, and  that  notwithstanding  the  forfeiture  of  the  fu-st, 
the  latter  still  subsisted,  and  a  specific  performance  of  the 
contract  for  sale  was  decreed  (r).  And  where  a  landlord 
agreed  to  give  a  builder  leases  of  successive  plots  of  land  as 

(n)  Faulkner  y.  Llewellyn,  31  L.  J.,  (p)  Fry,   Chap.  XV.;    Dart  V.  & 

Ch.  549;  11   \V.  R.  1055;  12  W.  R.  P.  680 ;  Ogaen   v.  Fossick,  32  L.  J., 

193.  Ch.    73;    11    W.    R.    128;     Scottish 

(o)  Parker  v.  Taswell,  2  De  G.  &  J.  North-Eastern    R.   Co.   v.   Stewart,  3 

559;  27  L.  J.,  Ch.  812;  and  see  Xor-  Macq.  H.  L.  Cas.  382. 

ris  V.  Jackson,  3  Giff.  39G;  8  Jur.,  N.  (7)  Hope  v.  Hope,  22  Bcav.  3.")1. 

S.  930.  (r)  Green  v.  Low,  22  Beav.  625. 

187 


*115  AGREEMENT.  FOR   LEASE.  [Ch.  IV.  S.  5. 

tlie  houses  upon  each  of  them  should  be  built  up  to  a  succes- 
sive stage,  it  was  held  that  the  agreement  was  in  its  nature 
separable,  and  could  be  enforced  as  to  some  of  the  plots  by 
an  assignee  of  the  builder  (s).  A  tenant  for  years,  with  an 
option  of  purchasing  the  fee,  must  not  only  give  due  notice 
but  also  on  the  proper  day  pay  or  tender  the  purchase- 
money;  that  being  a  condition  pi-ecedent  (f).  Such  a  notice 
may  be  given  to  the  infant  heir  of  the  lessor,  and  will  con- 
stitute a  valid  contract,  which  may  be  enforced  in  equity 
notwithstanding  the  infant  cannot  give  a  discharge  for  the 
purchase-money  (m). 

After  unnecessary  delay.  —  Where  one  party  to  an  agree- 
ment trifles,  or  shows  backwardness  in  performing  his  part 
of  it,  equity  will  not  decree  a  specific  performance  in  his 
favour,!  especially  if  the  circumstances  and  situation  of  the 
other  party  are  materially  altered  in  the  meantime  (2:),  or  if 

(s)  Wilkinson  v.  Clements,  L.  E.,  Melton,  2  Dr.  &  Sm.  278;  34  L.  J., 

8  Ch.  95;  42  L.  J.,  Ch.  38;  27  L.  T.  Ch.  227. 

834.  ((0  Woods  I'.   Hyde,  31  L.  J.,  Ch. 

(0  Weston  V.  Collins,  34  L.  J.,  Ch.  295 ;  10  W.  K.  389. 

353;  13  W.  R.  510;  Ld.  Ranelagh  v.  (x)  Hays  v.   Caryll,  1  Bro.   1\   C. 

1  For  example. — The  court  will  not  enforce  a  purchase  option  (though 
unconditional)  in  favor  of  lessee  who  has  abandoned  the  premises  without 
paying  rent,  and  left  for  parts  unknown,  &c.,  if  he  afterward  return.  Young 
t;.  Bown,  6  Chy.  (Ont.)  402. 

Laches  is  not  made  out  by  simple  delay,  as  where  one  in  possession  imdcr  an 
agreement  to  convey  fails  seasonably  to  call  for  the  deed.  AVestcrn  R.  R.  v. 
Babcock,  6  Met.  (Mass.)  346,  357,  358. 

An  agreement  for  a  lease  will  not  be  enforced  in  favor  of  a  lessee  upon 
payment  of  arrearages  four  years  after  the  limited  time  (twelve  months)  had 
expired.     Purvis  v.  Hume,  3  Allen  (N.  B.)  299. 

But  an  agreement  to  renew  a  lease  after  expiration  of  subsisting  lease  is 
not  barred  simply  by  lessee's  waiting  till  expiration  of  sulisisting  lease  (four 
years)  and  death  of  lessor  and  service  of  notice  to  quit  upon  him  by  executor 
of  lessor  before  bringing  his  bill  for  specific  performance.  Ryder  ;•.  Robinson, 
109  Mass.  (i7. 

The  court  will  not  decree  execution  of  a  covenant  of  perpetual  renewal, 
twelve  years  after  expiration  of  former  lease,  the  lessee  having  meantime  set 
up  an  adverse  title.  Myers  v.  Silljacks,  58  Md.  319.  A  covenant  for  perpet- 
ual renewal  was  said,  in  l^orrison  v.  Rossignol,  5  Cal.  04,  to  be  contrary  to  the 
policy  of  the  law. 

A  sealed  agreement  to  surrender  February  1,  and  pay  rent  until  surrender, 
is  not  broken  by  failure  to  surrender  until  February  28,  Dainty  r.  Vidal,  13 
A.  R.  (Ont.)  47,  51 ,  Ilagarty,  C.  J.,  saying,  "  If  .  .  .  the  tenant  liad  been  actively 
refusing  to  give  possession  when  requested,  a  different  question  might  arise." 

188 


Cii.  IV.  S.  5.]      REFUSAL   OF    SPECIFIC    PERFORMANCE.  *116 

the  contract  be  in  anywise  unilateral,  as  where  there  is  an 
option  to  purchase,  or  a  right  of  renewal,  or  any  other  con- 
dition in  favour  of  one  party  and  not  of  another  (y).  As  a 
general  rule,  a  party  cannot  call  upon  a  court  of  equity  for 
a  specific  performance,  unless  he  has  shown  himself  ready, 
desirous,  prompt  and  eager  (2).  "  It  would  be  dangerous 
to  permit  parties  to  lie  by,  with  a  view  to  see  whether  the 
contract  will  prove  a  gaining  or  losing  bargain,  and  accord- 
ing to  the  event  either  to  abandon  it,  or,  considering  time 
as  nothing,  to  claim  a  sjDecific  performance,  which  is  always 
the  subject  of  discretion  "  (a).  But  it  is  otherwise  where  the 
defendant  has  entered  into  possession,  and  paid  the 
rent  regularly  for  fourteen  or  *  fifteen  years  (6),  [*116] 
although  the  mere  payment  of  rent  is  not  enough  (c). 
In  other  cases  the  rule  will  be  relaxed  where  the  strict  appli-' 
cation  of  it  would  work  injustice  (<?),  as  where  a  landlord 
has  sent  a  draft  lease  to  a  tenant  who  fails  to  return  it  (e), 
or  where  any  objection  on  the  ground  of  delay  has  been 
waived  (/).  If  a  vendor  of  leaseholds  makes  time  the 
essence  of  the  contract,  and  on  the  daj'^  specified  for  the 
completion  of  the  purchase  insists  upon  the  money  being 
paid,  he  may,  in  the  event  of  the  purchaser's  neglect,  omis- 
sion or  refusal  to  comply  with  such  request,  avail  himself  of 
a  power  in  the  contract  to  annul  the  sale  (^).     So  where  the 

126;   Norris  v.  Jackson,  1  Johns.  &  Qi)  Sharp    i\   Milligan,    22    Beav. 

H.  319  ;  7  Jur.,  N.   S.  540  ;  Dart  V.  606  ;  23  Beav.  419  ;  Clarke  v.  Moore, 

&   P.    701,    702;    Heaphy  v.    Hill,  2  1  Jon.  &  L.  723;  Cartan  v.  Bury,  10 

Sim.  &  Stu.  29 ;  Southconib  v.  Bp.  of  Ir.  Ch.  R.  387  ;  Fry,  s.  738. 

Exeter,  6    Hare,  213,  218 ;    Chester-  (c)  Davenport  v.  Walker,  34  L.  T. 

man  r.  Mann,  9  Hare,  206 ;  Eads  v.  168  ;  Powis  v.  Ld.  Dynevor,  35  L.  T. 

Williams,  4  De  Gex,  M.  &  G.  691;  940. 

Walters  v.  Northern  Coal  Mining  Co.,  (c?)  Walker    v.  Jefferys,   1    Hare, 

5  De  Gex,  M.  &  G.  629 ;  Sneesby  v.  353 ;  Jones  v.  Jones,  12  Ves.  188 ;  2 

Thorne,  1  Jur.,  N.   S.  1058;  Fry,  s.  Tudor,  L.  C.  Eq.  443  (2nd  ed.). 

736.  (e)  Shepheard  v.  Walker,  L.  R.,  20 

(y)  Fry,  s.   733,  citing   Brooke  v.  Eq.  659;  33  L.  T.  17. 

Garrod,  27  L.  J.,  Ch.  226.  (/)  Fry,  ss.  745,  750;    Hudson  v. 

{z)  Milward  v.  Earl  of  Thanet,  5  Bartram,  3  Mad.  440;   King  v.  Wil- 

Ves.  720,  n. ;  2  Tudor,  L.  C.  Eq.  443  son,  6  Beav.- 124  ;  Ex  parte  Gardner, 

(2nded.).  4  Y.  &,  C.  Ex.  503. 

(rt)  Alley  V.  Deschamps,   13   Ves.  (9)  Hudson   v.  Temple,   29  Beav. 

225;  South-Eastern  R.  Co.  i'.  Knott,  536;  30  L.  J.,  Ch.  251;  2  Tudor,  L. 

10  Hare,  122;  Firth  v.  Greenwood,  1  C.  Eq.  452  (2nd  ed.). 
Jur.,  N.  S.  866. 

189 


*116  AGREEMENT  FOR   LEASE.  [Ch.  IV.  S.  5. 

purchaser  stipulates  for  possession  (which  includes  a  good 
title)  on  or  before  a  certain  day,  of  a  leasehold  house  for  his 
own  residence,  if  the  vendor  fail  to  make  out  a  good  title  by 
the  day  named,  the  purchaser  may  refuse  to  take  possession, 
and  rescind  the  contract  (A). 

Urgency.  —  In  contracts  for  the  lease  of  working  mines, 
the  time  for  completion,  whether  specified  or  not,  is,  from 
the  fluctuating  nature  of  the  property,  considered  as  of  the 
essence  of  the  contract,  and  the  intended  lessor  is  bound  to 
use  his  utmost  diligence  to  complete,  and  in  default  thereof 
the  proposed  lessee  may,  by  notice,  fix  a  reasonable  time  for 
completion,  and,  in  case  of  noncompliance  therewith,  may 
rescind  the  contract  (z). 

Time  will  be  considered  of  the  essence  of  the  contract  in 
contracts  with  ecclesiastical  corporations  for  leases,  because 
every  day  changes  the  value  and  nature  of  the  thing  to  be 
granted,  and  also  the  persons  who  are  to  participate  in  the 
fine  or  premium  to  be  paid  (^) :  also  in  other  cases  where 
the  property  is  of  fluctuating  value  (Z),  or  the  property  is 
wanted  for  commercial  purposes  (iti). 

When  tenant  has  committed  acts  of  forfeiture.  —  Specific 
performance  will  not  be  decreed  at  the  instance  of  a  tenant 
who,  having  entered  into  possession  under  an  agreement  for 
a  lease,  has  committed  waste,  or  omitted  to  repair,  or  done 
other  acts  which  would  clearly  amount  to  breaches  of  the 
covenants  to  be  contained  in  the  lease,  and  for  which  the 
lessor  would  have  been  entitled  to  re-enter  and  determine 
the  lease,  pursuant  to  a  proviso  for  re-entry  to  be  therein 
contained  (n)}      But   if  such    breaches    are    disputed,   and 

(A)  Tillcy  V.  Thomas,  L.  R.,  3  Ch.  (m)  2  Tudor,  L.  C.  Eq.  453   (2nd 

Ap.  61;  10  W.  R.  061.  ed.). 

(i)  Machryde  v.  Wcckcs,  22  Roav.  (n)  Woathcrall  v.  Gecrinp:,  12  Ves. 

533  ;  Sharp  /'.  Wrifrht,  28  Beav.  ir>0.  504  ;    Hill    v.   Barclay,    18    Ves.   03  ; 

(^)  Carter  v.   Dean  of  Ely,  7  Sim.  Nosbitt    v.    Meyer,    1     Swans.    223; 

211.  Lewis  V.  Bond,  18  Beav.  86;  Gregory 

(/)  Doloret    v.  Rotiischild,   1    Sim.  r.    Wilson,    0    Hare,   083;    Nunn    v. 

&  Stu.  590  Tnisentt,  3  De  Gex  &  Sm,  304  ;  Dart 

V.  &  r.  703  ;  Fry,  s.  042. 

'  Breach  of  covenants,  effect  of  —  See  Fry  on  Spec.  Perf.  of  Cont. 
sec.  040. 

190 


Ch.  IV.  S.  5.]      REFUSAL    OF    SPECIFIC   PERFORMANCE.  *117 

the  *  evidence  tliereof  is  not  clear  and  cogent,  or  [*117] 
if  it  appears  doubtful  whether  such  breaches  have 
not  been  waived  by  the  receipt  of  subsequent  rent  or  other- 
wise, the  court  will  decree  a  specific  performance,  and  direct 
the  lease  to  be  ante-dated,  with  liberty  for  the  landlord  to 
proceed  by  ejectment,  action  of  covenant,  or  otherwise,  for 
such  alleged  breaches,  the  tenant  undertaking  to  admit  in 
any  such  action  that  the  lease  was  executed  on  the  day  it 
bears  date  (o).  In  such  case  the  tenant  must  insure  imme- 
diately after  the  execution  of  the  lease,  if  it  contain  a  cove- 
nant to  insure,  &c.  (p).  Acts  creating  a  nuisance  to  the 
landlord,  for  which  a  remedy  may  be  had  in  damages,  but 
which  do  not  occasion  a  forfeiture,  are  no  ground  for  refusing 
a  specific  performance  (g). 

Proviso  against  assignment.  —  A  proviso  against  assignment 
to  be  contained  in  the  lease  will  prevent  an  assignment  of 


(o)  Fry,  s.  646;  Pain  v.  Coombs,  3  Browne  v.  Marquis  of  Sligo,  10  Ir.  Ch. 

Sm.  &  Giff.  449  ;  1  De  Gex  &  J.  34 ;  R.   1 ;  Blackett  v.  Bates,  2  H.  &  M. 

3  Jur.,  N.  S.  307,  847 ;  Lilley  ;;.  Leigh,  270 ;  34  L.  J.,  Ch.  515. 
3  De  Gex  &  J.  204;  Rankin  v.  Lay,  2  {p)  Doe  d.  Darlington  v.  Ulph,  13 

De  Gex,  F.  &  J.  65 ;  29  L.  J.,  Ch.  734;  Q.  B.  204. 

Rogers  v.  Tudor,  G  Jur.,  N.  S.  692 ;  (7)  Gordon  ;•.  Smart,  1  Sim.  &  Stu. 

Poyntz    V.  Fortune,   27    Beav.   393;  (jQ. 


An  agreement  for  a  lease  does  not  constitute  a  lease  in  equity  after  the 
intended  lessee  being  in  possession  has  broken  the  intended  covenants  to 
repair  and  pay  rent,  they  being  accompanied  with  a  re-entry  clause.  Swain  v. 
Ayres,  21  Q.  B.  D.  289;  Same  v.  Same,  20  Id.  585,  588  {per  Charles,  J.). 
"  In  the  present  case  specific  performance  of  the  agreement  to  grant  a  lease 
would  not  be  given  against  the  landlord  wlien  the  tenant  liad  broken  his  cove- 
nant to  repair"  {]>er  Charles,  J.,  supra,  p.  588). 

2  Renewal  covenant  may  be  enforced  by  continuing  partner  in  name  of 
firm  if  covenant  providing  for  renewal  by  continuing  partner.  Floyd  v.  Storrs, 
144  Mass.  56. 

An  agreement  for  lease  may  be  enforced  against  vendee  of  intended  lessor 
where  such  vendee  has  taken  premises  with  knowledge  and  promised  vendor 
to  carry  out  the  lease.  Simmons  (•.  Campbell,  17  Chy.  (Ont.)  612,  617.  Such 
an  agreement  for  a  lease  is  a  lease  in  equity  {per  Mowat,  V.-C,  p.  617)  ;  and 
in  such  a  case  the  vendee  would  be  estopped  to  set  up  the  Statute  of  Frauds 
as  a  defence.  Hodges  v.  Howard,  5  R.  I.  149,  150.  (And  see  whole  opinion 
of  Ames,  C.  J.,  declining  to  rest  the  decision  upon  possession  which  was 
equivocal,  but  placing  it  upon  the  equity  of  the  case.) 

191 


*118  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  6. 

the  agreement  itself  (r).     But  the  benefit  of  such  proviso 
may  be  waived  (s). 

Sect.  6.  —  Specific  Performance  hy  or  against  particular 

Persons. 

Who  may  sue  for  specific  performance.  —  The  person  to 
maintain  an  action  for  specific  performance  must  be  either, 
1st,  the  lessor  himself  or  his  representatives  in  interest ;  or, 
2ndl3%  the  lessee  himself  or  his  representatives  in  interest. 
If,  however,  the  contract  be  entered  into  by  a  tenant  for  life 
in  due  exercise  of  a  power,  specific  performance  will,  it  is 
conceived,  be  decreed  at  the  suit  of  a  remainderman  (t), 
except  where  there  is  an  undue  exercise  of  the  power  (m). 
Where  A.  agreed  to  grant  B.  a  lease,  and  before  he  had 
done  so  mortgaged  the  property  to  C.  wdth  notice,  who  in 
no  way  contested  B.'s  right  to  the  lease:  —  Held,  that  C.  was 
not  a  proper  party  to  a  suit  for  a  specific  performance  (a:). 

Against  executors  of  lessee.  —  Where  a  person  who  has 
agreed  to  take  a  lease  dies,  the  executors  admitting  assets 
may  be  compelled  to  take  a  lease,  the  covenants  being  so 
qualified  as  that  the  executors  shall  be  no  further  liable 
therein  than  they  would  have  been  on  the  covenants  which 
ought  to  have  been  entered  into  by  their  testator  («/). 
[*118]  *  Wiiere  action  necessary.  —  The  court  in  one  case 
refused  to  enforce  performance  of  an  agreement  by  a 
person  out  of  possession  to  grant  a  present  lease  to  a  person 
who  was  at  the  time  apprised  that  he  could  not  obtain  pos- 
session except  by  a  suit  (2).  It  seems,  too,  that  a  lessee  will 
not  be  compelled  to  assign  his  lease  (containing  a  covenant 
not  to  assign  without  licence)  where  the  agreement  to  assign 


(r)  Weathcrall  v.  Gcering,  12  Yes.  (j-)  Long  v.  Bowring,  .33  Bcav.  585. 

504.  ('/)  riiillips  V.  Evcrard,  5  Sim.  102; 

(s)  Dowcll  V.  Dew,  1  You.  &  Coll.  Stephens  v.   Ilotliam,  1    Iv.  &  J.  571 ; 

C.  C.  345;  Fry,  s.  120.  Page  v.  Broom,  3  Beav.  30;  Fry,  s. 

(i)  Shannon  v.  Brailshotl,  1  Sch.  &  121 ;  Siig.  V.  &  V.  209  (14tli  cd.). 

Lcf.  52,  G5;  Lowe  v.  Swift,  2  Ball  &  (:)  Bayly  v.  Tyrrell,  2   Ball  &  B. 

B.  529.  358 ;  Fry,  s.  132 ;  but  now  see  8  &  9 

(u)  Ilickctts  V.  Bell,  1  De  Ge.x  &  S.  Vict.  c.  106,  s.  0 ;  ante,  3. 
335. 

192 


Ch.  IV.  S.  6.]      PARTIES   IN   SPECIFIC   PERFORMANCE.  *118 

is  made  "subject  to  the  landlord's  approval,"  although  the 
landlord  unreasonably  holds  his  licence,  contrary  to  his  cove- 
nant not  to  do  so,  contained  in  the  lease  (a). 

Infants,  —  An  infant  cannot  sue  or  be  sued  for  a  specific 
performance  (6). 

Married  women.  —  A  married  woman  may  bind  her  separate 
estate,  and  by  s.  1,  sub-s.  (2),  of  the  Married  Women's  Prop- 
erty Act,  1882,  is  presumed  to  bind  such  estate,  unless  the 
contrary  be  shoM^h.  She  may  also  sue  or  be  sued  alone,  by 
sub-s.  (2)  of  the  same  section  on  a  contract  for  a  lease. 
Prior  to  that  act  she  sued  or  was  sued  with  her  trustees  (c). 

Lunatics.  —  A  contract  to  gi'ant  or  take  a  lease  may  be 
enforced  against  a  lunatic,  if  made  during  a  lucid  inter- 
val (r/). 

Felons.  —  The  court  has  refused  to  execute  an  agreement 
t®  grant  a  lease  to  a  man  who  has  committed  felony  (e)  ;  but 
the  terms  of  the  statute  33  &  34  Vict.  c.  23,  by  which  for- 
feiture for  felony  is  abolished,  seem  to  point  to  such  an 
agreement  being  enforceable  by  and  against  the  trustees  of 
the  felon's  property. 

Insolvents.  —  The  insolvency  of  the  intended  tenant  is  a 
valid  ground  for  resisting  the  specific  performance  of  an 
agreement  for  a  lease  (/). 

Bankrupts.  —  The  bankruptcy  of  the  intended  tenant  does 
not  determine  the  contract  for  a  lease  ((/)  :  but  it  vests  in 
his  trustee  in  bankruptcy,  who  ma}^  disclaim  it  (A).  If  the 
trustee  elect  to  take  a  lease,  he  must  enter  into  such  cove- 

(a)  Lehmann  v.  M' Arthur,  L.  R.,  3  (e)  Willingham  v.  Joyce,  3  Yes. 
Ch.  Ap.  496  ;  37  L.  J.,  Ch.  625.  169. 

(b)  Flight  V.  BoUand,  4  Russ.  298  ;  (/)  Buckland  v.  Hall,  8  Ves.  92 ; 
Hoggart  r.  Scott,  1  Russ.  &  Myl.  293;  Neale  v.  Mackenzie,  1  Keen,  474; 
Dart  V.  &P.  670;  but  see  Woods  v.  Price  v.  Assheton,  1  Y.  &  C.  441; 
Hyde,  31  L.  J.,  Ch.  295.  O'Herlihy  v.   Hedges,  1   Sch.  &  Lef. 

(c)  Johnson  v.  Gallagher,  3  T>e  123 ;  M'Nally  v.  Gradwcll,  IG  Ir.  Ch. 
Gex,  F.  &  J.  494,  519 ;  30  L.  J.,  Ch.  R.  512. 

298;  Picard  v.  Hine,  L.  R.,  5  Ch.  Ap.  (r?)  Buckland  v.  Papillon,  L.  R.,  1 

274.  Eq.  477  ;  ,35  L.  J.,  Ch.  387  ;  36  Id.  81 ; 

(d)  Fry,  s.  161 ;  1  Ves.  jun.  82  ;  but  L.  R.  2  Ch.  Ap.  67;  and  see  Kell  v. 
see  Hall  v.  Warren,  9  Ves.  605.  As  Nokes,  14  W.  R.  908 ;  Mackley  r. 
to  contract  for  lease  with  committee  Pettenden,  1  B.  &  S.  178;  30  L.  J., 
of  lunatic,  see  16  &  17  Vict.  c.  70 ;  Q.  B.  225. 

Re  Wynne,  L.  R.,  7  Ch.  229.  (A)  Post,  Chap.  VII.,  Sect.  7. 

193 


*119  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  7. 

nants  as  the  bankrupt  himself  would  have  had  to  enter 
into  (i) :  or  he  may  assign  the  agreement  for  a  lease  to  a 
purchaser,  who  may  enforce  a  specific  performance,  unless  in- 
deed the  agreement  contains  a  proviso  against  alienation  (^). 
If  the  trustee  elect  not  to  take  a  lease,  the  court  will  not 
enforce  the  agreement  at  the  instance  of  the  bank- 
[*119]  rupt(Z).  Where  a  person  agreed  to  grant  a  *  lease 
to  A.,  his  executors,  administrators  and  assigns,  upon 
certain  conditions,  and  A.  assigned  his  interest  in  the  con- 
tract to  B.,  and  afterwards  became  bankrupt,  it  was  held 
that  B.,  on  performing  the  conditions,  had  a  right  to  enforce 
the  agreement  specifically  (w). 

Corporations. —  If  there  has  been  a  part  perfonnance  of  the 
contract  for  a  lease  by  a  corporation,  the  court  will  decree  a 
specific  performance  of  it,  though  the  contract  was  not  under 
the  common  seal  of  the  corporation  (w). 

It  has  been  held,  that  the  commissioners  of  woods  and 
forests  are  neither  entitled  to  sue  nor  liable  to  be  sued  for 
the  specific  performance  of  contracts  entered  into  with  or  by 
them  (o).    . 


Sect.  7.  —  Form  of  Lease,  and  hoiv  settled  after  a  Decree. 

Form  of  lease  —  how  settled.  —  Questions  as  to  the  validity 
of  the  contract,  and  as  to  whether  it  is  inequitable  to  enforce 
its  specific  performance,  must  be  determined  at  the  hearing; 
questions  of  title  are  referred  to  chambers  (^).  The  court, 
on  pronouncing  a  decree  for  specific  performance  of  an  agree- 
ment to  take  a  lease,  will  not  usually  enter  into  the  question 
as  to  what  covenants  the  lease  shall  contain.  But  it  will  do 
so  where  the  nature  of  the  decree  to  be  made  depends  upon 
that  question  {^).      In    ordinary  cases    any  such   question 

(/)  Powell  V.  Lloyd,  2  Y.  &  J.  .372.  (n)  Steovon'.s  TTosyiital  v.  "Dy.is,  15 

Ik)  Cro-sbie  v.  Tookc,  1   Myl.  &  K.  Ir.  CIi.  11.  405;  Wilson  v.  West  Hartle- 

431;    Morgan    v.    Kliodes,    Li.    496;  pool  R.  Co.,  34  L.  J.,  Ch.  241. 

Kuckland  v.  I'apillon,  supra.  (o)  Nurse  r.  Ld.  Seymour,  13  Beav. 

(/)  Rrook   V.   Hewett,  3  Vcs.  255;  254. 

Woatlicrall  i;.  Geering,  12  Vcs.  504.  (/»)  ITood  r.  Of,'Iander,  34  Heav.  513. 

(w)  Morgan  v.   llhodes,  1  Myl.  &  (7)  Hlakcsley  /;.  Whcildon.  1  Hare, 

K.  435.  170,  183  (where  see  form  of  minutes 

194 


Ch.  IV.  S.  7.]  DECREE   FOR    A   LEASE.  *120 

must,  if  necessary,  be  settled  in  chambers :  and  for  that  pur- 
pose one  party  must  prepare  the  draft  of  a  lease,  and  hand  a 
copy  to  the  other,  that  such  alterations  may  ho  made  as  may 
be  deemed  necessary :  and  when  the  parties  cannot  agree 
upon  any  point,  it  may  be  brought  before  the  judge's  chief 
clerk,  who  will  settle  the  draft  lease  in  such  manner  as  he 
thinks  fit  (r).  Either  party  may  appeal  to  the  judge,  and 
apply  to  him  to  vary  the  terms  of  the  draft  lease  as  settled 
by  the  chief  clerk :  but  at  the  peril  of  costs  (s). 

Enforcement  of  decree.  —  If  the  defendant  refuse  or  neglect 
to  comply  with  the  decree,  the  court  may,  on  such  terms  and 
conditions  (if  any)  as  may  be  just,  "  order  that  the  lease  be 
executed  by  such  person  as  the  court  may  nominate  for  that 
purpose,"  and  in  such  case  the  lease  so  executed  "shall 
operate  and  be  for  all  purposes  available  as  if  it  had 
been  executed  by  the  person  originally  directed  to  exe- 
cute it"  (0- 

"Usual  covenants."  —  *  The  question  what  cove-  [*120] 
nants  the  parties  to  an  agreement  for  a  lease  are 
entitled  to  have  inserted  in  the  lease  itself  is  of  great  impor- 
tance (it),  but  it  seems  clear,  that  whether  the  agreement  for 
the  lease  stipulates  for  usual  covenants  or  not,  the  law 
implies  that  usual  covenants  shall   be    inserted  (2;).      The 


giving   such   directions)  ;    Reeves   v.  (m)  See  the  question  carefully  dis- 

GrecnwicJi  Tanning  Co.,  2  H.  &  M.  cussed,  Dav.  Prec.  vol.  5,  pt.  1.  p.  51 

54  ;  Onions  v.  Cohen,  2  H.  &  M.  354  ;  (ed.  3,  a.d.  1870),  wliere  it  is  said  that 

34  L.  J.,  Ch.  338  ;  Beadel  v.  Pitt,  11  the  result  of  the  authorities  is  that  the 

Jur.,  N.  S.  152;  13  W.  II.  287.  only  covenants  which  the  lessor  can 

(?•)  Jenkins  ??.  Green,  27  Beav.  440;  insist  on  as  "usual  covenants"  are 

28  L.  J.,  Ch.  817,  820 ;  Parisli  v.  Slee-  covenants  to  pay  rent  and  taxes,  and 

man,  1  De  Gex,F.  &  J.  320;  29  L.  J.,  to  repair  and  to  allow  the  lessor  to 

Ch.  53.  enter  and  view   the  state   of  repair, 

(s)  Parish      v.     Sleeman,     supra  ;  with  a  proviso  for  re-entry  on  breach 

Sharp  V.  Milligan,  23  Beav.  419.  of  the  covenant  to  pay  rent;  and  that 

(<)  Jud.  Act,  1884,  47  &  48  Vict.  c.  the   only  covenant  which   the  lesset 

61,  s.  14.     See  Hall  v.  Hall,  51  L.  T.  can  insist  on  is  the   usual  qualified 

226,  in  which  Kay  appointed  a  person  covenant  for  quiet  enjoyment ;  a  pas- 

in  place  of  a  defaulting  defendant  to  sage   cited  with  a{)prov:il   by  Jessel, 

execute  a  lease,  un«ler  the~  somewhat  M.  R.,  in   Hampshire  v.  Wickens,  L. 

similar  section  30  of  the  Trustee  Act,  R.,  7  Ch.  D.  555,  and  infra,  p.  121. 

1850,  and  Edwards,  In  re,  33  W.  R.  (r)  Church    v.  Brown,   15    Ves.  at 

578,  in  which  Pearson,  J.,  appointed  p.  265;  Propert  v.  Parker,  3  My.  &  K. 

his  chief  clerk  to  execute  a  mortgage.  280. 

195 


*121  AGREEMENT    FOE   LEASE.  [Ch.  IV.  S.  7. 

question  what  are  usual  covenants  appears  to  be  one  of  fact, 
not  of  law,  in  a  case  where  the  parties  stipulate  for  usual 
covenants  (j/),  but  to  be  a  question  of  law  where  the  con- 
tract for  the  lease  is  silent  as  to  covenants  (z). 

What  are  "  usual "  covenants  depends,  in  some  measure, 
on  the  practice  of  conveyancers,  which  vary  from  time  to 
time,  so  that  what  was  a  usual  covenant  in  Lord  Eldon's 
time  would  not  necessarily  be  held  to  be  a  usual  covenant 
now ;  and  also  depends  upon  the  character  of  the  property 
agreed  to  be  demised,  so  that  what  would  be  a  usual  cove- 
nant in  a  contract  for  a  mining,  would  not  necessarily  be 
held  to  be  so  in  a  contract  for  an  agriculture  lease. 

Rent.  —  The  covenant  to  pay  rent  has  been  held  to  be 
a  usual  covenant  in  the  construction  of  a  lease  under  a 
power  (a),  and  seems  indeed  to  be  in  all  cases  a  usual  cove- 
nant. 

Repair.  —  The  covenant  to  repair  seems  clearly  usual  (i), 
and  it  has  been  twice  held  on  the  construction  of  a  contract 
for  a  lease  (c),  that  the  exception  which  has  for  some  time 
been  commonly  inserted  in  leases,  in  case  of  destruction  of 
the  premises  by  fire,  is  not  "  usual." 

To  pay  taxes.  —  A  covenant  by  the  tenant  to  pay  rates  and 
taxes  ought  clearly  to  be  inserted,  if  the  contract  for  the 
lease  stipulate  for  a  iiet  rent  ((?)  ;  but  this  is  not  so  much 
because  the  covenant  Ls  usual,  as  because  the  words  "  net 
rent "  imply  it ;  and  the  better  opinion  seems  to  be  —  tliough 
there  is  no  express  decision  to  that  effect  —  that  amongst 
"  usual  covenants  "  must  be  reckoned  a  covenant  by  the 
tenant  "  to  pay  taxes,  excej)t  such  as  are  usually  payable  by 
the  landlord  "  (e). 

Not  to   assign   or   underlet.  —  The   covenant  not  to 
[*121]   assign  or  underlet,  without  the  leave  of  the  *  lessor, 


(y)  In  Bennett  v.  Womack,  7  B.  &  C^)  Kendall  v.  Hill,  G  .Tur.,  N.  S. 

C.  fiii?,  and  in  Brookes  v.  Drysdalc,  908. 

L.  H.,  3  C.  V.  I).  52,  post,  it  was  as-  (c)  Id.;  Sharp  1\  Milligan,  2;3  Bcav 

sumed  to  be  a  question  of  fact.  419. 

(2)  Church  V.  Brown,  ubi  .luprti.  (<l)  Bennett  v.  Womack,  3  C.  &  P 

(a)  Taylor  v.  Horde,  1  Burr.  GO.  9G ;  7  B.  &  C.  G27. 

(e)  Hampshire  v.  Wickens,  infra. 

196 


Cn.  IV.  S.  ".]  DECIIEE   FOR   A   LEASE.  *121 

is  not  a  usual  covenant  (/),  whether  it  be  restricted  by  such 
words  as  "such  leave  not  to  be  Avithheld  to  a  respectable 
and  responsible  tenant,"  or  not.  (</) 

To  trade.  —  A  covenant  not  to  carry  on  a  particular  trade, 
without  the  leave  of  the  lessor,  is  not  a  usual  covenant  (A), 
and  a  contract  for  a  lease  of  a  house  to  contain  usual  covenants 
between  landlord  and  tenant,  and  a  covenant  not  to  convert 
the  house  into  a  school,  does  not  imply  a  restrictive  cove- 
nant upon  trading  generally  («'). 

To  use  for  particular  purpose.  —  In  Bennett  v.  Womack  (^), 
the  defendant  contracted  for  the  purchase  of  the  lease  of  a 
public-house  described  as  held  "  upon  usual  and  common 
covenants."  In  an  action  for  not  completing,  the  judge 
directed  the  jury  to  find  for  the  plaintiff  upon  evidence  that 
six  out  of  ten  public-house  leases  contained  the  proviso  for 
re-entry  if  the  lessee  should  carry  on  any  other  business  than 
that  of  a  victualler,  which  proviso  had  been  objected  to  by 
the  defendant  as  uncommon  (¥)  ;  and  the  court  refused  to 
enter  a  non-suit. 

A  contract  for  a  lease  (to  contain  usual  covenants)  of  land 
on  which  the  lessee  was  to  build  and  not  to  use  the  premises 
for  any  other  purpose  than  a  glass  manufactory,  was  held  not 
to  entitle  the  lessor  to  an  affirmative  covenant  by  the  lessee 
to  use  the  premises  for  such  purpose  (J). 

Registration  of  sublease.  —  Where  there  was  an  agreement 
to  take  an  assignment  of  a  public-house  lease  subject  to  cove- 
nants "common  and  usual  in  leases  of  public-houses,"  and 
the  lease  was  found  to  contahi  a  condition  that  every  under- 
lease, &c.,  should  be  left  with  the  ground  landlord's  solicitor, 
it  was  held,  the  jury  having  found  as  a  fact  that  the  condi- 
tion was  not  usual,  that  the  condition  was  a  covenant  within 


(/)  Church  V.  Brown,  15  Ves.  258;  (K)  Propert  v.  Tarker,  3  Myl.  &  K. 

Henderson  v.  Hay,  3  Bro.  0.  C.  632 ;  280. 

Vere  «7.  Loveden,  12  Ves.  179 ;  Buck-  (i)    Van    v.    Corpe,   3    Myl.    &   K. 

land  I'.  Papillon,  30  L.  R.,  2  Ch.  67;  269. 
36  L.  J.,  Ch.  83.  {k)  7  B.  &  C.  627. 

(7)  Hampshire  v.  Wickens,  L.  R.,  (/)  Doe    d.    Marquis    of    Bute    v. 

7  Ch.  D.  555;  47  L.  J.,  Ch.  243;  26  Guest,  15  M.  &  W.  160. 
W.  R.  491,  per  Jessel,  M.  R. 

197 


*122  AGKEEISIENT   FOR    LEASE.  [Ch.  IV".  S.  7. 

the  contemplation  of  the  agreement,  and  that  the  purchaser 
was  not  bound  to  complete  (w). 

List  of  "  usual  covenants."  —  The  whole  question  was  con- 
sidered in  1878  by  Jessel,  M.  R.,  in  Hampshire  v.  Wickens  (</). 
In  that  case  the  defendant  agreed  to  accept  a  lease  of  a 
dwelling-house  in  London  "  on  all  usual  covenants  and  pro- 
visos," but  declined  to  accej)t  the  lease  proposed  to  be 
granted  on  the  ground  that  such  lease  contained  a  covenant 
by  the  lessee  "  that  he  would  not,  without  the  previous  con- 
sent of  the  lessor,  assign,  underlet,  or  part  with  tlie  posses- 
sion of  the  said  premises,  but  such  consent  not  to  be  withheld 
to  a  respectable  and  responsible  tenant,"  &c.     Jessel,  M.  R., 

after  ruling  that  "  if  no  objection  can  be  made  to  an 
[*122]  *  unrestricted  covenant  against  assignment,  none  can 

be  made  to  a  covenant  that  is  restricted,"  held,  that 
the  agreement  could  not  be  specificall}^  enforced,  and  cited 
with  approval  the  passage  from  Davidson's  Precedents  in 
Conveyancing,  of  which  an  abstract  has  already  been 
given  (7i).  Subsequently,  in  Eadie  v.  Addison  (o),  where  the 
defendant  had  agreed  to  grant  to  the  plaintiff,  a  brewer,  a 
"  proper  "  lease  of  a  public-house,  "  to  be  drawn  up  with  all 
proper  clauses,"  and  approved  of  by  the  defendant  and  his 
solicitor,  and  the  defendant  refused  to  grant  a  lease  unless  it 
contained  a  clause  against  underletting,  it  was  held,  that 
such  a  clause  was  not  a  "  proper  clause,"  and  the  defendant 
was  decreed  to  grant  the  lease  without  it. 

Proviso  for  re-entry.  — In  Hodgkinson  v.  Crowe  (p),  it  was 
laid  down  that,  as  a  "  usual  "  term,  the  proviso  for  re-entry 
is  applicable  to  the  breach  of  the  covenant  to  pay  rent,  and 
to  the  breach  of  no  other  covenant.  In  that  case  there 
was  an  agreement  for  a  lease  of  mines  to  contain  numerous 
terms  succinctly  statfed,  and  amongst  them  "all  usual  and 
customary  mining  clauses."  Bacon,  V.-C,  hold  that  the 
intending  landlord  was  entitled  to  have  inserted  in  the  lease 
a  proviso  for  re-entry  on  non-payment  oi  rents  and  royalties, 

(m)  Brookes  7'.  Drysdiile,  L.  K.,  ?,  (o)  Endio  v.  Addison,  52  L.  J.,  Ch. 

C.  r.  I).  52;  -.M  L.  T.  407  ;  20  W.  U.  80;  47  L.  T.  53;};   31  W.  U.  320. 

8:]1.  (/))  L.  R.,  10  Ch.  022;   44  L.  J., 

(h)  Ante,  120  (h).  Cli.  080;  33  L.  T.  388;  23  W.  K.  886. 

198 


Ch.  IV.  S.  8.]  SOLlClTOll's   CHARGES.  *123 

*'or  if  and.  whenever  there  should  be  any  breach  of  the  cove- 
nants and  agreements  in  the  lease  contained.*'  But  this  rul- 
ing was  reversed  on  appeal ;  and  James,  L.  J.,  expressed  the 
opinion  that  the  clause  of  forfeiture  for  breach  of  covenant 
generally  was  "a  most  odious  stipulation,  offensive,  and 
oppressive  beyond  measure  "  {q}. 

Re-entry  ou  bankruptcy.  —  A  proviso  for  re-entry  on  the 
bankruptcy  of  the  lessee  has  been  held  to  be  usual  in  tlie 
case  of  a  contract  for  a  lease  of  a  hotel  (r),  but  not  of  a  con- 
tract for  a  mining  lease  (s),  or  for  a  farming  lease  (0-  There 
is  strong  authority  for  saying  that  it  is  not  "  usual "'  (w). 

Concluding  remarks  on  "  usual  covenants."  —  It  is  to  be 
observed  that  in  the  majority  of  the  cases  (a;)  the  question 
was  decided  by  an  equity  judge  without  a  jury.  Was  it  so 
decided  as  a  question  of  fact  or  of  law  ?  Is  evidence  admis- 
sible ?  Would  a  judge  be  bound  to  direct  a  jury  to  find  in 
accordance  with  the  equity  decisions  ?  These  are  open 
questions  upon  the  authorities,  but  it  is  submitted  that  what 
is  usual  must  in  every  case  be  a  question  of  fact  to  be 
decided  upon  evidence  if  either  party  so  require,  that 
*upon  an  action  for  specific  performance  in  the  [*123] 
Chancery  Division  there  would  be  some  reason  for 
applying  for  a  jury  under  Order  XXXVL,  Rule  6,  and  that 
such  a  jury  might  find  independently  of  the  equity  decisions. 


Sect.  8.  —  Solicitor's   Charges. 

The  Solicitors'  Remuneration  Order,  1882  (?/),  prescribes 
a   scale    of   remuneration    to   solicitors   for  agreements    for 

(7)  As    to    "  Relief    against    For-  "  must  be  treated  as  distinctly  over- 

feiture,"  see  Conveyancing  Act,  1881,  ruled  "  by  Hodgkinson  r.  Crowe, supra. 

s.  14,  Ch.  VIII.,  Sect.  6.  But  note,  that  in  Haines  v.  Burnett 

(r)  Haines    v.   Burnett,   27    Beav.  the  words  were,  "  such  covenants  as 

500;   29  L.  J.,  Ch.  289.  are  usually  inserted  in  leases  of  prop- 

(s)  Hodgkinson  v.  Crowe,  L.  R.,  19  ertj'  of  a  similar  description." 

Eq.  691 ;  44  L.  J.,  Ch.  238 ;  33  L.  T.  (x)  Only  in  Bennett  v.  Womack,  7 

122.  B.  &  C.  627,  and  Brookes  r.  Drysdale, 

(0  Hyde  v.  Warden,  L.  R.,  3  Ex.  L.  R.,  3  C.  P.  D.  52,  was  the  question 

D.  72  ;  47  L.  J.,  Ch.  121  —  C.  A.  submitted  \o  a  jury. 

(m)  Hyde  f.  Warden,  s«/??a ;  Hamp-  ((/)  See  so  much  of  the   Order  as 

shire  v.   Wickens,  supra,  where  it  is  applies  to  agreements  for  leases  and 

said    that    Haines   v.   Burnett,  supra,  leases,  post,  Appendix  A.,  sect.  13. 

199 


*123  AGREEMENT   FOR   LEASE.  [Ch.  IV.  S.  8. 

leases  and  leases  varying  in  proportion  to  the  rent,  and 
accordingly  as  'the  transaction  is  completed  or  not,  but  not 
including  stamps,  counsel's  fees,  and  other  disbursements 
"  reasonably  and  properly  paid  "  (Rule  4).  The  scale,  which 
is  set  out  in  full  hereafter  (?/),  may  be  generally  described 
here  as  a  7-2-  per  cent,  scale  on  the  rental  for  the  intending 
lessor's  solicitor,  and  half  that  amount  for  the  intending 
lessee's  solicitor.  A  solicitor  concerned  for  both  parties  is 
to  charge  the  lessor's  solicitor's  charges,  and  one-half  the 
lessee's  solicitor's  charges. 

Charges  for  negotiations  preparatory  to  an  agreement 
which  resulted  in  a  lease  have  been,  under  the  order,  dis- 
allowed on  taxation  (s). 

(s^  Field,  In  re,  W.   N.   for  May  2d,  1885— C.  A.,  affirming  Chitty,  J. 

200 


*  CHAPTER  V. 

THE   LEASE 


[*124] 


8BCT.  PAGE 

1.  Definition  of  "  Lease  "     .     .  V2i 

2.  What  Leases  by  Deed      .     .  127 

3.  Form  of  Lease 130 

4.  Construction 132 

5.  Description  of  Premises      .  138 

(a)  Generallj^ 138 

(b)  "  General  Words  "  under 
Conveyancing  Act    .     .     .  143 

6.  Term  granted 144 

(a)  Habendum 144 

(b)  Lease  for  Life  of  Lessee  145 

(c)  "  Lease  for  Lives  "    .     .  146 

(d)  Commencement  of  Term  149 

(e)  Duration  of  Term      .     .  153 

7.  Reddendum 158 

8.  Express  Covenants      .     .     .  159 

(a)  Generally 159 

(b)  "  Running  with  Land  "  .  162 

(c)  Dependent  or  Independ- 
ent   166 

(d)  How  discharged    .     .     .  171 

9.  Implied  Covenants      .     .     .  172 

(a)  Generally 172 

(b)  On     letting     furnished 
house 173 

(c)  On  letting   unfurnished 
house  at  low  rent      .     .     .  174 

10.  Exceptions  and  Reservations  177 


SECT.  PAGE 

11.  Provisos  and  Conditions      .  180 

12.  Schedules,      Indorsements, 

&c 183 

1.3.  Stamp 184 

14.  Execution 188 

15.  Registry  (in  Middlesex,  &c.)  191 
10.  Cost  of  Lease 195 

(a)  By  whom  payable      .     .  195 

(b)  Scale  of  Costs  ....  196 

17.  Entry  of  Lessee      ....  197 

18.  Void  or  Voidable    ....  197 

19.  Leases  under  Powers  ,     .     .  199 

(a)  Generally 199 

(b)  In  Possession  or  Rever- 
sion       203 

(c)  Usual  Covenants  ...  205 

(d)  Proviso  for  Re-entry      .  206 

(e)  Lands  usually  Let     .     .  207 

(f)  Mode  of  Execution    .     .  209 

(g)  Defect  in  —  how  cured  209 

20.  Leases  in  Reversion    .     .     .  210 

21.  Concurrent  Leases .     .     .     .  211 

22.  Estoppel 213 

23.  Bond   for   Performance    of 

Covenants 216 

24.  Rectification,  &c.,  of  errone- 

ous Lease 217 

25.  Cancellation  for  Fraud   .     .  218 


Sect.  1.  —  Definition  of  "  Lease.'^ 

Definition.  —  A  lease  is  a  conveyance  (a)   by  way  of   de- 
mise of  lands  or  tenements,  for  life  or  lives,i  for  years,^  or  at 


(a)  In  the  Conveyancing  Act,  1881, 
the     word    "  conveyance "    includes 


"lease"  unless  a  contrary  intention 
appears. 


1  Kenney  v.  Wentworth,  77  Me.  203.  A  lease  with  covenant  of  perpetual 
renewal  is  not  a  conveyance  of  a  fee.  Page  v.  Esty,  54  Me.  319,  .^26.  But 
a  rent  charge  may  be  reserved  in  a  grant  of  a  fee.  Farley  v.  Craig,  11  N. 
J.  L.  262. 

2  Berridge  v.  Glassey,  112  Pa.  St.  442. 

201 


*124  THE   LEASE.  [Ch.  V.  S.  1. 

will,^  but  always  for  a  less  term  than  the  party  conveying 
himself  has  in  the  premises  ;  for  if  it  be  for  the  whole  inter- 
est, it  is  an  assignment  and  not  a  lease  (6). 2  A  lease  is 
usually  made  in  consideration  of  rent,  or  some  other  annual 
recompense  rendered  to  the  party  conveying  the  premises  ^ — 
who  is  called  the  lessor  or  landlord  —  by  the  party  to  whom 
they  are  conveyed  or  let,  who  is  called  the  lessee  or  ten- 
ant (c). 

Distinction   between  lease   and  licence  to  use.  —  A  lease  is 
also  a  contract  for  the  exclusive  ^  possession  of  lands  or  tene- 

(b)    Beardman    v.   "Wilson,  L.  R.,       cases  cited,  post,  Ch.  VII.,   Sect.   5. 
4  C.  P.  57  ;  17  W.  K.  54 ;  and  see  the  (c)  Shep.  Touch.  266. 


1  Laxton  v.  Rosenberg,  11  Ont.  199,  207. 

2  As,  for  example,  where  a  lessee  grants  a  sublease  equal  to  or  greater 
than  his  own  term.  Stewart  v.  L.  I.  R.  R.  Co.,  102  N.  Y.  601 ;  Langford  v. 
Selmes,  3  Kay  &  Johns.  220.  A  tenant  for  life  cannot  grant  a  valid  lease  to 
continue  longer  tlian  his  own  life.  Wright  v.  Graves,  80  Ala.  416,  420  (per 
Clopton,  J.).  And  a  lease  for  lives  made  by  a  tenant  for  life  (not  complying 
with  leasing  power)  expires  with  the  death  of  the  life  tenant.  Enright  v. 
O'Loghlen,  20  L.  R.  (Ir.)  159. 

•^  A  reservation  of  rent  is  not  essential  to  the  character  of  a  lease. 
—  Though  usually  made  in  consideration  of  rent,  a  reservation  of  rent  is  not 
essential  to  the  character  of  a  lease.  Failing  v.  Schenck,  3  Hill  (N.  Y.)  344; 
State  V.  Page,  1  Speers  (S.  C.)  408,  429  (per  O'Neall,  J.);  Jackson  v. 
M'heeler,  6  Johns.  (N.  Y.)  272 ;  McKissack  v.  Bullington,  37  Miss.  535,  538 
(]>er  Harris,  J.). 

"  The  proposition  that  rent  is  not  essential  to  the  existence  of  a  leasehold 
estate  is  entirely  obvious  "  (per  Cowan,  J.,  in  Failing  v.  Sclienck,  supra,  p.  347). 

In  Fiske  i'.  Framiiigham  Man.  Co.,  14  Pick.  (Mass.)  491,  there  was  no 
direct  reservation  of  rent  for  the  demised  premises  (a  factory),  but  the  lessor 
derived  benefit  from  the  contract  of  the  lessee  to  manufacture  goods  for  him 
at  a  stipulated  price.  Even  this  benefit,  however,  is  not  necessary  to  consti- 
tute a  lease. 

*  Exclusive  possession  essential. —  Exclusive  possession  is  essential  to 
the  character  of  a  lease. 

Examples :  the  use  of  premises  by  permission  of  the  owner  and  in  com- 
mon with  him  does  not  constitute  a  tenancy,  but  simply  a  license.  Central 
Mills  V.  Hart,  124  Mass.  123. 

Joint  occupancy  with  the  lessor  as  his  servant  is  not  sufficient  to  create  a 
tenancy.     West  v.  Atherton,  2  Allen  (N.  B.)  653. 

A  contract  for  exclusive  oc(;upation  of  rooms  in  an  apartment  house  is  suf 
ficent.  Porter  v.  Merrill,  124  Mass.  5.">4,  though  it  has  been  lield  tliat  a  con- 
tract for  board  and  lodging  in  a  boarding-liouse  is  not.  White  v.  Maynard, 
111  Mass.  250;   Wilson  v.  Martin,  1  Denio  (N.  Y.)  602. 

Leave  or  pcrmi.ssion  to  a  circle  of  ladies  eonnected  with  a  religious  society 
to  use  a  hall  in  a  church,  but  not  to  the  exclusion  of  the  society,  does  not 

202 


Ch.  V.  S.  1.]  DEFINITION   OF   LEASE.  *124 

ments  for  some  certain  number  of  years  or  other  deter- 
minate period  (^d).^     An  instrument  is  not  a  demise  or  lease, 

(d)  Reg.  V.  Morrish,  32  L.  J.,  M.  C.  245. 

constitute  a  lease,  but  a  mere  revocable  lioense.  Hamblett  v.  Bennett,  6 
Allen  (Mass.)  140,  145. 

Where  a  father  gives  up  possession  and  control  of  liis  farm  to  his  son, 
upon  condition  of  supporting  him,  and  continues  to  reside  with  him  on  the 
farm,  the  arrangement  creates  a  tenancy.  Ferguson  );.  Savoy,  4  Allen  (N.  B.) 
263. 

A  conveyance  of  an  exclusive  privilege  to  mine  iron  ore  for  a  tei'm  of 
years,  paying  royalties  and  with  various  covenants,  was  held  to  be  a  lease  in 
Seymour  v.  Lynch,  7  Out.  471,  affirmed  by  evenly  divided  court  in  13  A.  II. 
(Ont.)  525. 

In  United  States  v.  Gratiot,  14  Pet.  534,  tlie  United  States  Supreme  Court 
held  that  a  license  for  one  year  to  smelt  lead  ore  at  United  States  lead  mines, 
paying  rent  in  percentage  of  lead  and  witii  right  of  cultivating  as  much  laud 
as  miglit  be  required  for  the  teams,  was  a  lease  for  years. 

In  Freeman  v.  Underwood,  06  Me.  229,  an  executory  sale  of  blueberries, 
grass,  and  timber  for  ten  years,  with  possession  so  far  as  necessary  for  the 
sake  of  securing  them,  was  a  lease.     Freeman  v.  Underwood,  60  Me.  229. 

1  Cultivation  on  shares ;  does  the  cultivation  of  land  on  shares 
create  a  tenancy  ? — This  question  has  been  little  considered  in  England. 
It  has  given  rise  to  much  discussion  in  America.  Generally  it  is  held  that 
the  contract  may  or  may  not  create  a  tenancy  according  to  circumstances. 
The  courts,  however,  differ  widely  in  construction  of  the  same  circumstances. 
Hare  v.  Celey. 

The  dicta  in  tlie  famous  case  of  Hare  v.  Celey,  Cro.  Eliz.  143,  is  sometimes 
followed  in  this  country,  sometimes  limited,  and  frequently  rejected.  That  was 
a  case  of  a  contract  for  the  cultivation  of  land  for  a  single  season,  under  which 
the  owner  and  cultivator  were  each  to  furnish  half  the  seed,  and  were  to  share 
the  crop.  The  court  said  that  the  relation  of  landlord  and  tenant  did  not 
exist,  because  the  contract  was  for  a  single  season,  otlierwise  if  it  had  been 
for  more  than  one.  It  was  held  that  the  owner  had  sole  right  of  possession, 
and  could  alone  maintain  trespass,  (jiiare  clausuvi. 

The  court  said  they  were  tenants  in  common  of  the  crop,  and  might  have 
joined  for  an  injury  to  it.  This  case  was  meagrely  rejjorted,  and  it  is  hard  to 
tell  exactly  how  far  its  doctrine  extends.  If  it  decides  that  a  contract  for 
the  cultivation  of  land  on  shares  for  a  single  season,  but  under  which  the  actual 
possession  and  sole  control  of  the  premises  are  delivered  to  the  cultivator,  does  not 
create  a  tenancy;  it  is  opposed  to  the  weight  of  American  authorities,  as  it 
is  also  upon  tlie  point  of  tenancy  in  common  in  the  crop. 

How  far  followed.  —  The  case  has  been  followed,  among  other  cases,  by 
Bradish  v.  Schenck,  8  Johns.  (N.  Y.)  151,  152  (a  contract  for  one  year),  and 
by  Foote  v.  Colvin,  3  Id.  216,  and  DeMott  v.  Hagerman,  8  Cow.  (N.  Y.)  220. 

Cropping  contracts. — The  last-named  case  and  possibly  the  next  to  the 
last  were  mere  contracts  to  work  upon  the  land  of  another,  receiving  pay  in  a 
share  of  the  crop  (sometimes  called  cropping  contracts).  All  authorities 
admit  that  such  contracts  do  not  create  tenancies,  but  that  the  entire  posses- 
sion of  the  land  and  ownership  of  the  crop  is  in  the  owner  until  division. 
McNeely  v.  Hart,  10  Jred.  L.  (N.  C.)  03;  Brazier  v.  Ansley,  11  Id.  12;  Hare 

203 


*125  THE  LEASE.  [Ch.  V.  S-  1. 

[*125]  although  it  *  contains  the  usual  words  of  demise,  if 
its  contents  show  that  such  was  not  the  intention  of 

V.  Pearson,  4  Id.  76  (per  Daniel,  J.)  ;  State  v.  Jones,  2  Dev.  &.  Batt.  (N.  C.) 
544;  Harrison  v.  Kicks,  71  N.  C.  (per  Rodman,  J.),"  Adams  v.  McKesson, 
53  Pa.  St.  81;  Chase  t'.  McDonnell,  24111.  236;  Kelley  v.  Weston,  20  Me.  232; 
Endicott,  J.,  in  Warner  v.  Abbey,  112  Mass.  355. 

Classification  of  contracts.  —  Contracts  for  the  cultivation  of  land  on 
shares  may  (under  the  conflicting  decisions)  be  divided  into  four  classes, 
viz. : — 

1.  Simple  unqualified  tenancies  (lessee  liaving  exclusive  possession  of 
land  and  legal  title  to  the  entire  crop  until  division).  Stewart  v.  Doughty,  9 
Johii* .  (N.  Y.)  108,  and  a  host  of  cases  cited  later. 

2.  Qualified  tenancies  (the  lessee  having  exclusive  possession  of  the  land, 
but  the  owner  being  a  tenant  in  common  of  the  crop).  Walls  v.  Preston,  25 
Cal.  59,  64,  and  other  cases  cited  later. 

3.  Pure  cropping  contracts  (under  which  owner  has  entire  possession  and 
ownership  of  crop  until  division.     See  cases  cited  supra). 

4.  Qualified  cropping  contracts  or  quasi  tenancies  (under  which  cropper 
has  a  qualified  but  not  exclusive  possession  of  the  land,  and  is  tenant  in 
common  with  the  owner  of  the  crop).  Hare  v.  Celey,  supra;  Delaney  v. 
Root,  99  Mass.  546,  549;  Foote  v,  Cohin,  and  Bradish  v.  Schenck,  supra: 
Walker  v.  Fitts,  24  Pick.  (Mass.)  191;  Aiken  v.  Smith,  21  Vt.  172;  Guest 
V.  Opdyke,  31  N.  J.  L.  552;  Harrower  v.  Heath,  19  Barb.  (N.  Y.)  331; 
DeMott  V.  Hagerman,  8  Cow.  (K  Y.)  220 ;  Putnam  v.  Wise,  1  Hill  (N.  Y.) 
234;  Caswell  v.  Districh,  15  Wend.  (N.  Y.)  379;  Bishop  v.  Doty,  1  Vt.  37; 
Smyth  V.  Tankersley,  20  Ala.  212.  The  question  whether  the  letting  was  for 
one  or  more  seasons  is  now  little  regarded. 

Concurrence  of  authority.  —  It  may  be  regarded  as  settled  in  America, 
that  the  relation  of  landlord  and  tenant  may  be  created  by  contracts  to  culti- 
vate land  on  shares.  Such  contracts  will  always  create  tenancies  whenever 
the  exclusive  possession  and  control  is  given  to  the  cultivator,  the  difficulty 
being  that  the  courts  in  different  jurisdictions  find  differently  upon  the  same 
facts.  Whether  a  tenancy  is  created  or  not,  is  a  question  of  intention  to  be 
ascertained  by  construction  of  the  contract.  Caton,  C.  J.,  in  Alwood  v.  Ruck- 
man,  21  111.  200;  Rhodes,  J.,  in  Walls  v.  Preston,  25  Cal.  59,  64,  65;  Rodman, 
J.,  in  Harrison  v.  Ricks,  71  N.  C.  7,  11;  Bell,  J.,  in  JMoulton  r.  Robinson,  27 
N.  H.  550,  551;  Johnson  v.  Hoffman,  53  Mo.  504;  Hoar,  J.,  in  Delaney  v. 
Root.  99  Mass.  546,549;  Endicott,  J.,  in  Warner  v.  Abbey,  112  Mass.  355, 
359,  360  ;  AVoodruff,  J.,  in  Taylor  v.  Bradley,  39  N.  Y.  129,  138,  139. 

Mixed  question  of  law  and  fact. —  When  the  contract  is  an  oral  one, 
the  question  is  a  mixed  question  of  law  and  fact,  to  be  determined  by  the 
jury  under  instructions  from  the  court.  Facts  which  constitute  a  simple 
tenancy  in  one  state  create  qualified  ones,  or  quasi  tenancies,  or  mere  crop- 
ping contract,  in  others. 

Qualified  tenancies. — The  following  cases  are  cases  of  qualified  tenan- 
cies, in  which  it  was  ht^ld  that  a  tenancy  exisled,  but  that  the  owner  and  cul- 
tivator were  tenants  in  common  of  the  crop.  Walls  v.  Preston,  25  Cal.  59, 
64,65;  Sunol  v.  Molloy,  63  I<1.  369;  Schell  v.  Simon,  66  Id.  2()1  ;  Cooper  r. 
McCrrew,  8  Or.  327,  330;  Ferrall  r.  Kent,  4  Gill  (Md.)  209;  State  v.  Jewell, 
34  N.  J.  L.  259;  Johnson  v.  IIolTman,  53  Mo.  508;  Kamerick  v.  Casllcman,  23 
Mo.  App.  481. 

In  several  cases  the  owner  has  been  held  entitled  to  an  interest  in  the  crop 

204 


Ch.  V.  S.  1.]  DEFINITIOI^J    OF   LEASE.  *125 

by  virtue  of  a  special  reservation  in  the  contract,  or  to  have  obtained  an 
interest  by  delivery  or  other  expiration  of  the  contract.  Smith  ?'.  Atkins,  18 
Vt.  461;  Ksdon  (■.  Colburn,  28  Id.  031;  Willniarth  v.  Pratt,  50  Id.  474;  Heald 
V.  Build.  Ins.  Co.,  Ill  Mass.  38;  Hart  v.  Baker,  29  Ind.  200;  Lindley  v. 
Kelley,  42  Id.  204. 

In  some  cases  the  courts  have  simply  decided  that  the  owner  and  cultivator 
were  tenants  in  common  of  tlie  crop,  without  deciding  whetlier  tiiey  were 
landlord  and  tenant.  Schmitt  v.  Cassilius,  31  Minn.  7  ;  Fiquet  u.  Allison,  12 
Mich.  328;  Lewis  v.  Lyman,  22  Pick.  (Mass.)  437. 

Unqualified  tenancies.  —  In  the  vast  majority  of  cases  where  tlie  courts 
have  held  the  rehition  of  landlord  and  tenant  did  exist,  they  have  also 
decided  tliat  the  owner  and  cultivator  were  not  tenants  in  common  of  the 
crop,  and  that  the  entire  crop  belonged  to  the  cultivator  until  delivery  or 
other  equivalent  act.  Stewart  v.  Dougiity,  9  Johns.  (N.  Y.)  108;  Warner  v. 
Abbey,  112  Mass.  355;  Orcutt  i-.  Moore,  134  Id  48;  Alwood  v.  Ruckman,  21 
III.  200 ;  Overseers  v.  Overseers,  14  Johns.  (N.  Y.)  365 ;  Jackson  v.  Brownell, 
1  Id.  267  ;  Deaver  v.  Rice,  4  Dev.  &  Bat.  (N.  C)  431 ;  Waltson  v.  Bryan,  64 
N.  C.  764;  Harrison  v.  Ricks,  71  Id.  7;  Woodruff  v.  Adams,  5  Blackf.  (Ind.) 
317;  Dixon  v.  NiccoIIs,  39  111.  372;  Hoskins  r.  Rhodes,  1  Gill  &  Johns.  (Md.) 
266 ;  Ream  v.  Harnish,  45  Pa.  St.  376 ;  Rhicliart  v.  Olwine,  5  Watts  &  Serg. 
(Pa.)  157  ;  Front  v.  Hardin,  56  Ind.  165  ;  Lacy  v.  Weaver,  49  Id.  373 ;  Williams 
v.  Smith,  7  Id.  559;  Chissom  v.  Hawkins,  11  Id.  316;  Fowler  v.  Hawkins,  17  Id. 
211 ;  Chicago,  &c.,  R.  R.  Co.  v.  Linard,  94  Id.  319;  Cunningliam  v.  Baker,  84 
Id.  597;  Gordon  v.  Stockdale,  89  Id.  240;  Ross  v.  Swaringer,  9  Ired.  L. 
(N.  C.)  481;  vSymonds  v.  Hall,  37  Me.  354  (per  Howard,  J.);  Sargent  v. 
Courrier,  66  111.  245;  Burns  v.  Cooper,  31  Pa.  St.  426  (per  Strong,  J.,  but  in 
this  case  a  sufficient  division  and  delivery  had  been  made) ;  Townsend  v. 
Isenberger,  45  Iowa,  670;  Blake  v.  Coats,  3  G.  Greene  (Iowa)  548;  Rees  v. 
Baker,  4  Id.  461 ;  Merrit  v.  Fisher,  19  Iowa,  354.  This  case  decides,  as 
virtually  all  the  others  do,  that  the  sliare  of  crop  reserved  to  the  owner  was 
rent ;  it  also  decides  that  the  rent  might  be  secured  by  the  lessor  under  a 
special  Iowa  statute  designed  to  take  the  place  of  common  law  distress. 
Larkin  v.  Taylor,  5  Ivans.  433,  441 ;  Fry  v.  Jones,  2  Rawle  (Pa.)  11 ;  Strain  v 
Gardner,  61  Wis.  174  ;  Manwcll  r.  Manwell,  14  Vt.  14,  24;  Hurd  *;.  Darling,  16 
Vt.  377  ;  Koob  v.  Ammann,  6  Bradw.  (111.)  160;  Redmon  r.  Bedford,  80  Ky. 
13;  Lamberton  v.  Stouffer,  55  Pa.  St.  284;  Brown  u.  Jaquette,  94  Pa.  St.  113; 
Texas  &  Pac.  Ry.  Co.  v.  Bayliss,  62  Tex.  570 ;   Walworth  v.  Jenness,  58  Vt.  670. 

Besides  the  foregoing,  it  has  been  held  in  many  other  cases  that  such  con- 
tracts created  tenancies.  Darling  r.  Kellj',  113  ]\Iass.  29 ;  Geer  c.  Fleming, 
110  Id.  39;  Cornell  v.  Dean,  105  Id.  435;  Yates  v.  Kinney,  19  Neb.  275; 
Dworak  o.  Graves,  16  Neb.  706  ;  Hatchell  v.  Kimbrough,  4  Jones  (N.  C.)  163, 
(trespass  maintained  against  owner)  ;  Birmingham  i\  Rogers,  46  Ark.  254  ; 
and  that  it  might  exist  was  said  in  Moulton  v.  Robinson,  27  N.  H.  550,  557 ; 
Plansen  v.  Dennison,  7  Bradw.  (111.)  73.  (In  this  case  it  was  said  that  if  the 
cultivator  did  not  have  exclusive  possession,  the  owner  and  cultivator  might 
be  tenants  in  common  of  the  crop ;  and  the  court  said  that  in  case  of  an  oral 
lease  it  was  a  question  of  fact  for  the  jury),  Taylor  v.  Bradley,  39  N.  Y. 
129,  138,  139  (i„r  Woodruff,  J.). 

Held  not  to  be  tenancies.  —  In  the  following  cases,  in  addition  to  others 
previously  cited,  it  was  held  that  the  contract  did  not  create  tenancies,  Bernal 
V.  Havious,  17  Cal.  542;  Lowe  v.  Miller,  3  Graft.  (Va.)  205;  Maverick  v. 
Gibbs,  3  McCord  (S.  C.)  211;  Taylor  v.  Bradley,  39  N.  Y.  129;  Chase  v. 
McDonnell,  24  111.  236  ;  Adams  v.  McKesson,  53  Pa.  St.  81,  several  of  them 

205 


*125  THE   LEASE.  [Cn.  V.  S.  1. 

the  parties.  Thus  where  A.  agreed  with  B,  to  let  him  have 
the  use  of  the  Surrey  Gardens  and  Music  Hall,  Newington, 

being  cases  of  contnicts  such  as  are  admitted  to  be  nothing  but  cropping  con- 
tracts everywhere. 

Cropping  contracts.  —  It  is  everywliere  admitted  (see  cases  previously 
cited)  that  under  a  jiure  or  unqualified  cropping  contract  the  entire  legal 
ownership  of  the  crop  is  in  tiie  owner  of  the  land  until  division. 

As  was  said  by  liodinaii,  .J.,  in  Harrison  i'.  Kicks,  71  N.  C.  7,  11,  "A 
croj)per  has  no  estate  in  the  land  ;  that  reniains  in  the  landlord  ;  consequently, 
although  he  has  in  some  sense  the  possession  of  the  crop,  it  is  only  the  j)0!ises- 
sion  of  a  servant,  and  is  in  law  that  of  the  landlord.  'J"he  landlord  must 
divide  to  the  cropper  his  share.  In  short  he  is  a  laborer  receiving  pay  in  a 
share  of  the  crop." 

Leases  on  shares;  Kent's  opinion.  — In  contrast  to  this  is  the  relation 
of  a  lessee  on  sliarcs,  as  stati'd  by  Ki'nt,  Ch.  J.,  in  Stewart  i'.  Doughty,  9 
Johns.  (N.  Y.)  108,  113:  "They  were  not  tenants  in  common  in  the  crops  and 
productions  raised.  The  interest  and  property  in  the  crop  was  exclusively  in 
the  tenant  until  he  had  separated  and  delivered  to  the  lessor  his  [)roportion. 
It  might  as  well  be  said  that  the  lessor  would  have  been  tenant  in  common  in 
the  crop,  though  he  was  to  receive  only  every  tenth  bushel  of  grain  as  a  rent," 
&c.  As  ai»[)lied  to  the  facts  of  that  (.'ase,  the  language  of  Justice  Kent, 
although  tsiijijiosfd  to  be  overruled  in  New  York,  is  sustained  by  the  weight  of 
American  authority.  The  contract  in  tliat  case  was  an  indenture  of  lease  for 
six  years,  and  the  cultivator  was  "to  render,  yield  and  pay  to"  (the  owner) 
"the  one-half  of  all  the  wheat,"  &c.,  and  it  does  not  appear  that  the  owner 
was  to  furnish  any  portion  of  the  seed,  &c.  Stewart  v.  Doughty  is  sustained 
in  New  York  by  Jackson  v.  Hrownell,  1  Johns.  207,  and  Overseers  r.  Overseers, 
14  Id.  :){):>. 

The  law  in  New  York.  — Xotwithstanding  the  later  New  York  cases,  as, 
Caswell  V.  Districh,  1.5  Wend.  .37!) ;  Putnam  r.  Wise,  1  Hill,  2:54;  De  Mott  r. 
Ilagerman,  8  Cow.  220  ;  Dinehart  r.  W^ilson,  15  Barb.  505;  Harrower  v.  Heath, 
19  Id.  Z'W,  supposed  to  overrule  Stewart  v.  Doughty,  it  is  still  believed  that  a 
tenancy  on  shares  may  be  created  in  New  York.  See  opinion  of  Woodruff, 
J.,  in  Taylor  v.  Bradley,  .39  N.  Y.  129,  1:58,  139.  The  presumption,  however, 
will  ordinarily  be  in  that  state,  that  if  the  contract  is  not  a  pure  cropping  con- 
tract, it  is  a  qualified  one,  in  which  the  cultivator  is  a  tenant  in  common  in 
the  crop,  but  has  no  legal  possession  in  the  land. 

The  law  in  majority  of  American  states.  —  In  the  majority  of  Ameri- 
can st;ites,  it  is  believed,  the  law  is,  as  it  was  laid  down  by  Caton,  C.  J.,  in 
Alwood  I".  Huckman,  21  111.  200,  201,  viz. : 

"  The  law  is  too  well  settled  to  admit  of  dispute  "  that  contracts  to  cultivate 
land,  though  for  a  single  year,  may  or  may  not  constitute  tenancies  according 
to  the  intentions  of  the  i)arties  as  expressed  in  the  contract  or  explained  by 
the  cirtMimstances.  ' 

If  the  relation  of  landlord  and  tenant  exists,  "the  parties  are  not  tenants 
in  common  of  the  crop  raised,  but  the  title  to  the  whole  is  in  the  tenant  until 
the  rent  stipulated  is  j)aid." 

Tenancy  in  common  in  the  land.  — There  may  possibly  be  held  to  exist 
another  relation  between  the  jiarties  in  some  states  and  under  some  circum- 
Btances,  to  wit :  a  tenancy  in  common  in  the  land  C«ee  Kndicott,  J.,  in  Warner 
i;.  Abbey,  112  Mass.  .355,  and  Hiire  /•.  Celey,  Cro.  Eliz.  143). 

2U»i 


Cii.  V.  S.  1.]  DEFINITION    OF    LEASE.  *125 

for  four  (lays  at  100/.  j)er  clay,  for  the  purpose  of  giving  a 
series  of  four  grand  concerts  and  day  and  night  fetes  ;  but 
from  the  terms  of  the  agreement  it  was  evident  that  A.  was 
not  to  part  with  the  possession  of  the  premises  during  those 
four  days:  this  was  held  no  demise  (g).  So  where  A.,  an 
owner  of  lace  machines,  paid  12.9.  a  week  to  B.  for  per- 
mission to  place  the  machines  in  a  room  in  B.'s  factory,  and 
for  free  ingress  and  egress  to  the  room  for  liiinself  and  work- 
men for  the  pnr[)Ose  of  working  and  inspecting  the  machines; 
B.  supplied  the  necessary  steam  power  for  working  the  ma- 
chines, payment  for  which  was  included  in  tlio  above  sum  : 
it  was  held  that  there  was  no  demise  to  A.  of  any  part  of  the 
room,  and  no  relation  of  landlord  and  tenant  created  be- 
tween him  and  B.  (/).  Where  an  incorporated  canal  com- 
pany by  deed  granted  to  the  plaintiff  the  sole  and  exclusive 
right  or  liberty  of  putting  or  using  pleasure  boats  for  hire 
on  their  canal,  it  was  held  that  the  grant  did  not  create  such 
an  interest  or  estate  in  the  plaintiff  as  to  enable  him  to 
maintain  an  action  in  his  own  name  against  a  person  who 
disturbed  his  right  of  putting  and  using  pleasure  boats  for 
hire  on  the  canal  (ryr).  A  licence  to  fasten  a  coal-barge  to 
moorings  fixed  in  a  river,  until  determined  by  a  month's 
notice  —  the  licensee  to  pay  30/.  annually  towards  the  ex- 
pense of  the  moorings  —  does  not  amount -to  a  demise  nor 
give  the  licensee  an  exclusive  right  to  the  use  of  the  moor- 
ings, nor  render  him  liable  to  be  rated  as  the  occupier  of 
part  of  the  bed  of  the  river  {h').  The  grant  by  a  riparian 
proprietor  of  a  right  to  take  water  from  a  natural  stream  on 
which  his  land  abuts,  operates  as  a  licence  in  gross,  and  not 
as  a  demise,  and  will  not  enable  the  grantee  to  maintain  an 
action   in   his    own    name    against   a   wrongdoer  (t).      The 


(e)  Taylor  v.  Caldwell,  .3  B.  &  S.  Local  Board,  L.  R.,  4  Q.  B.  0;  17  W. 

820;  .32  L.  ,J.,  Q.  B.  104.  R.  70;   see  also  London   and  North- 

(/)  Hancock  i;.  Austin,  14   C.  B.,  Western  R.  Co.  v.  Buckmastcr,  L.  R., 

N.  S.  634;  32  L.  J.,  C.  P.  252.  10  Q.  B.  444  ;  44  L.  .1.,  M.  C.  180;  33 

(ff)  Hill  V.  Tapper,  2  H.  &  C.  121 ;  L.  T.  329;  Cory  v.  Bristow,  L.  R.,  2 

32  L.  J.,  Ex.  217.  App.  Cas.  202. 

(/i)  Watkins  r.  Overseers  of  Milton  (/)  Stockport  Waterworks   Co.   v. 

next  Gravcsend,  L.  R.,  3  Q.  B.  3.V) ;  Totter,  3  II.  &  C.  300. 
37  L.  J.,  M.  C.  73  ;    Grant  v.  Oxford 

207 


*126  THE  LEASE.  [Ch.  V.  S.  1. 

gratuitous  loan  of  a  shed  for  a  particular  purpose  operates 
as  a  mere  licence  revocable  at  any  time  (A;).  A  licence  to 
get  all  the  copperas  stone  which  may  be  found  in  part  of  a 
manor,  for  twenty-one  years,  at  the  yearly  rental  of  251.  is 
not  a  demise,  and  will  not  support  a  distress  for  the  rent  (Z). 
A  demise  of  a  fire-brick  manufactory,  for  twenty-one  years, 
with  powers  during  such  term  to  dig  fire-clay  from  under 

certain  adjoining  land,  does  not  amount  to  a 
[*126]  *  lease,  but  only  to  a  licence  as  to  the  fire-clay,  and 

will  not  prevent  the  licensor  from  digging  parts  of 
such  fire-clay,  or  authorizing  others  to  do  so,  or  otherwise 
dealing  with  such  adjoining  land  in  a  manner  not  inconsis- 
tent with  the  licence  Qn}. 

Right  of  shooting,  &c. —  A.  licence  to  hunt  or  shoot  over 
land,  although  it  does  not  give  the  licensee  any  estate  in  the 
land  (?i),  amounts  to  the  grant  of  an  incorporeal  heredita- 
ment ;  and  an  assignee  of  the  reversion  may  sue  for  breaches 
of  any  covenant  which  touches  or  relates  to  the  land  and 
runs  with  it  (o).  But  the  licence  to  convey  an  estate  must 
be  by  deed ;  for  a  parol  licence  to  exercise  a  right  of  way  or 
other  easement  over  land  of  the  licensor,  whether  anything 
was  paid  for  such  licence  or  not,  may  be  revoked  at  any  time, 
either  expressly  or  by  doing  some  act  inconsistent  with  such 
licence  (^^).  Any  such  licence  is  determined  by  the  death 
of  the  licensor  or  of  the  licensee,  or  by  an  assignment  of  the 
land  over  which,  or  of  the  subject-matter  in  respect  of  which, 
the  easement  or  privilege  is  to  be  enjoyed  (^).  But  an 
action  lies  for  a  breach  of  contract  to  grant  an  incorporeal 
hereditament,  although  the  contract  be  not  under  seal  (r). 

(k)  Williams  V.  Jones,  3  H.  &  C.  W.  808 ;  Hyde  v.  Graham,  1  H.  &  C. 

25G  ;  33  L.  J.,  Ex.  207.  693  ;  Wakk-y  v.  Frogfratt,  2  II.  &  C. 

(/)  Ward  V.  Day,  4  B.  &  S.  337  ;  5  GO!) ;    Waterflow   v.  Bacon,   L.  R.,  2 

Id.  3o9  ;  33  L.  J.,  Q.  B.  3,  254.  Eq.  514  ;  Gale,  74,  75. 

(/n)  Carr  v.  Benson,   L.  K.,  3  Ch.  (7)  Coleman  r.  Foster,  Bart.,  1  H. 

Ap.  524.  &  C.  37  ;  Roberts  i>.  Rose,  3   II.  &  C. 

(n)  Bird  v.  Groat  Eastern  R.  Co.,  1(52 ;  33  L.  J.,  E.x.  1,  241  ;  35  Id.  02  ; 

19  C.  B.,  N.  S.  208.  Wallis  v.  Harrison,  4  M.  &  W.  538; 

(o)  Hooper  W.Clark,  8  B.  &  S.  150;  6  Id.   142;    Roffey  v.  Henderson,   17 

L.  R.,  2  Q.  B.  200;  30  L.  J.,  Q.  B.  Q.  B.  575. 

79.  (r)  Smart  i\  Jones,  33  L.  J.,  C.  P. 

(/j)  Wood  V.  Lcadbittcr,  13  M.  &  154. 

208 


Ch.  V.  S.  2.]         WHAT    LEASES   MUST   BE   BY   DEED.  *127 

General  requisites  of  a  good  lease.  —  These  things  must  con- 
cur in  the  making  of  every  good  lease :  1.  There  must  be  a 
lessor,  who  is  able  to  make  the  lease.  2.  There  must  be  a 
lessee,  who  is  capable  of  taking  the  thing  demised.  3.  There 
must  be  a  thing  demised  wliich  is  demisable.  4.  If  the  thing 
demised  or  the  term  expressed  to  be  granted  be  not  grant- 
able  without  a  deed,  or  the  party  demising  be  not  able  to 
grant  without  a  deed,  the  lease  must  be  made  by  deed,  con- 
taining a  sufficient  description  of  the  lessor,  the  lessee,  the 
thing  demised,  the  term  granted,  and  the  rent  and  cove- 
nants :  and  all  necessary  circumstances,  as  sealing,  delivery, 
&c.,  must  be  observed.  5.  If  it  be  a  lease  for  years,  it  must 
have  a  certain  commencement,  at  least  when  it  takes  effect 
in  interest  or  possession,  and  a  certain  determinatiop,  either 
by  an  express  enumeration  of  years,  or  by  reference  to  a  cer- 
tainty that  is  expressed,  or  by  reducing  it  to  a  certainty  upou 
some  contingent  event,  which  must  happen  before  the  death 
of  the  lessor  or  lessee.  6.  There  must  be  an  acceptance  of 
the  thing  demised,  and  of  the  estate  by  the  lessee  (s). 


*  Sect.  2.  —  What  Leases  must  he  hy  Deed.       [*127] 

A  lease  for  three  years  or  less  may  be  in  writing  or 
parol  as  the  parties  please  (^),  but  a  lease  for  more  than 
three  years  must  be  by  deed.^  Such  is  the  effect  of  8  &  9 
Vict.  c.  106,  s.  3,  taken  in  conjunction  with  sects.  1,  2  of  the 
Statute  of  Frauds.  By  8  &  9  Vict.  c.  106,  s.  3,  "  a  lease 
required  by  law  to  be  in  writing,  of  any  tenements  or 
hereditaments  made  after  the  1st  October,  1845,  shall  be 
void  at  law  unless  made  by  deed."  And  by  the  Statute  of 
Frauds,  29  Car.  2,  c.  3,  s.  1,  "all  leases,  estates,  interests 

(s)  Shop.  Touch.  267.  Lord    Bolton    v.  Tomlin,  5  A.  &  E. 

(0  See  Hylcy  v.  Hicks,  1  Stra.  651 ;       856. 

^  Leases:  when  by  deed  in  America.  —  In  Canarla,  leases  of  property 
which  are  requireil  by  law  to  be  in  writing  must  also  be  by  deed.  2  Reed  on  St. 
of  Frauds,  sec.  797,  citing  C.  S.  LT.  C.  c.  90,  sec.  4  ;  32  Vict.  c.  .3o,  sec.  2 ;  Rev.  Sts. 
1877  (Ont.)  c.  98,  sec.  4,  and  Hurley  r.  M'Donell,  11  U.  C.  Q.  B.  208;  Lewis 
V.  Brooks,  8  U.  C.  Q.  B.  576.     See  also  Caverhill  c.Orvis,  12  C.  P. (Ont.)  392. 

In  the  mnjority  of  American  states,  leases  arc  not  required,  to  be  by  deed 
unless  for  terms  of  years  declared  freeholds  by  statute. 

209 


*127  THE   LEASE.  [Ch.  V.  S.  2. 

of  freehold,  or  terms  of  years,  or  any  uncertain  interest  of, 
in,  to  or  out  of  any  messuages,  manors,  lands,  tenements  or 
hereditaments,  made  or  created  by  livery  and  seisin  only, 
or  by  parol  and  not  put  in  writing  and  signed  by  the  parties 
so  making  or  creating  the  same,  or  their  agents  thereunto 
lawfully  authorized  by  writing  (?<),  shall  have  the  force  and 
effect  of  leases  or  estates  at  will  only ;  and  shall  not,  either 
in  law  or  equity,  be  deemed  or  taken  to  have  an}-  other  or 
greater  force  or  effect,  any  consideration  for  making  any 
such  parol  leases  or  estates  to  the  contrary  notwithstand- 
ing "  (a;) :  excepting,  nevertheless,  sect.  2,  "  all  leases  not 
exceeding  the  term  of  three  years  from  the  making  thereof, 
whereupon  the  rent  reserved  ^o  the  landlord  during  such 
term  shall  amount  unto  two-third  parts  at  the  least  of  the 
full  improved  value  of  the  thing  demised."  ^     A  lease  for  a 

(u)  Smith  L  &  T.  82  (2nd  ed.)-  paid  and  received.    Clayton  ?'.  Blakey, 

(t)  But  such  estates  at  will   may  8  T.  R.  3  ;  Doe  d.  Rig^^e  v.  Bell,  5  T. 

change  into  tenancies  from  year  to  R.  471  ;  2  Smith  L.  C.  96,  102  (7th 

year,  when  any  of  the  agreed  rent  is  ed.)  ;  Smith  L.  &  T.  28,  82  (2nd  ed.). 

'  When  valid  by  parol  in  America.  —  "Tlie  excepted  term  for  which 
leases  not  in  writing  may  be  valid  is,  in  the  American  states,  usually 
one  year  instead  of  three.  It  is  so  limited  in  Arizona,  Alabama,  Cali- 
fornia, Colorado,  Dakota,  Delaware,  Idaho,  Illinois,  Iowa,  Kansas,  Kentucky, 
Michigan,  Minnesota,  Mississippi,  Montana,  Nebraska,  Nevada,  New  York, 
Oregon,  Rhode  Island,  Texas,  Utah,  Virginia,  West  Virginia,  Wisconsin,  and 
Wyoming. 

In  Connecticut  there  is  the  additional  proviso  that  the  parol  agreement 
must  be  followed  up  by  actual  occupancy  of  the  leased  premises  by  the  lessee 
or  some  one  claiming  under  him.  In  Florida,  the  exception  is  in  favor  of 
leases  for  not  more  than  two  years,  while  in  Indiana,  North  Carolina,  and 
Tennessee,  the  term  is  increased  to  three  years.  In  New  Jersey  and  Pennsyl- 
vania, the  qualification  of  the  Englisli  statute  "from  tlie  making  thereof  "has 
been  added  to  tiie  three  years'  limitation.  The  English  statute  was  re-enacted 
in  but  few  states,  — Georgia,  Maryland,  South  Carolina,  Massachusetts,  Michi- 
gan, Missouri,  New  .lersev,  Vermont.  There  is  no  exception  whatever  made 
in  the  statute  in  Oiiio.  In  Arkansas,  a  lease  by  parol  has  the  force  and  effect 
of  a  lease  at  will  only,  and  "shall  not,  either  in  law  or  equity,  be  deemed  or 
taken  to  have  any  greater  effect  or  force  tiian  a  lease  not  exceeding  the  term 
of  one  year. 

...  In  Louisiana,  leases  may  be  made  cither  by  written  or  verbal  con- 
tract, while  the  transfer  of  hlle  of  immovable  jji-ojierty  must  be  reduced  to 
writing,  and  no  parol  evidence  thereof  is  admissible."  See  )>ost,  Ch.  6,  note 
"'IVnancies  from  year  to  year,"  &c.,  as  to  tiie  distinctions  in  tenancies  in  the 
different  states. 

2  Reed  on  the  Statute  of  Frauds,  sec.  795.    Nearly  all  the  American  states 

210 


Ch.  V.  S.  2.]  WHAT    LEASES    MUST    HE    HY   DEED.  *127 

term  of  less  than  three  years,  with  the  right  in  the  lessee,  at 
his  option,  to  prolong  it  to  a  period  exceeding  three  years 
from  the  date  of  the  lease,  is  within  this  exception  (?/). 
Sect.  4  enacts  "  that  no  action  shall  be  brought  whereby  to 
charge  any  person  upon  any  contract  or  sale  of  lands,  tene- 
ments or  hereditaments,  or  any  interest  in  or  concerning 
them,  unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be  in 
writing  and  signed  by  the  party  to  be  charged  therewith  oi- 
some  other  person  thereunto  by  him  lawfully  authorized  (z). 
Void  lease  may  operate  as  agreement.  —  The  effect  of  8  &  9 

(y)  Hand  v.  Hall,  L.  R.,  2  Ex.  D.  be  autliorizcd  6y  jj^riViVir;  as  under  sect. 

355  ;  46  L.  J.,  Ex.  603  ;  36  L.  T.  765 ;  1 ;  Smith  L.  &  T.  93  (2nd  ed.)  ;  Clarke 

25  W.  R.   734  — C.  A.,  reversing  de-  v.  Fuller,  16  C.  B.,  jST.   S.  24;  Foster 

cision  below,  2  Ex.  D.  318  ;  46  L.  J.,  v.  Rowland,  7  H.  &  N.  103  ;  Heard  v. 

Ex.  242.  Pilley,  L.  R.,  4  Ch.  Ap.  548.    For  the 

(•i)  This  extends  to  all  mere  agree-  effect  of  sect.  4  upon  an  agreement 

nients  for  leases  (even  for  less  than  for  a  lease,  see  ante,  p.  85. 
tliree  years)  ;  but  the  agent  need  not 

have  refused  to  add  the  additional  requirement,  in  the  second  section  of  the 
Statute  of  Frauds,  "as  lo  the  amount  of  rent  to  be  reserved."     Same. 

Three  years,  &c.,  computed  from  w^hen  in  England,  United  States, 
and  Canada.  — ''  As  tlie  English  statute  expressly  limits  parol  leases  to  those 
not  exceeding  three  yenrs  from  t/ie  inakitig  thereof,  it  has  alwaj's  been  held  that 
the  three  years  must  be  computed  from  the  making  of  the  agreement,  .  .  .  have 
been  followed  without  question  in  those  states  in  wliich  the  Statute  of  Frauds 
contains  the  clause  from  the  making  thereof.  In  Pennsylvania,  accordingly, 
and  New  Jersey,  the  English  rule  has  been  followed."  2  Reed  on  St.  of 
Frauds,  sec.  813. 

Also  in  Ontario  and  New  Brunswick  same  citing.  Kaatz  v.  White,  19 
U.  C.  C.  P.  36;  Brewing  r.  Berryman,  2  Pugs.  (N.  B.)  115;  Hurley  v. 
McDonnell,  11  U.  C.  Q.  B.  208. 

Where  the  clause  "from  the  making  thereof"  is  omitted  from  Statute  of 
Frauds,  the  number  of  years  is  generally  considered  "solely  with  reference  to 
tlie  duration  of  the  term."  2  Reed  on  St.  of  Frauds,  sec.  814,  citing  Sears 
V.  Smith,  3  Col.  290  (per  Thatcher,  C.  J.)  ;  Sobey  v.  Brisbee,  20  Iowa,  105; 
Jones  V.  IVIarcy,  49  Id.  188;  Steininger  r.  Williams,  63  Ga.  475;  Taggard  v. 
Roosevelt,  2  E.  1>.  Smith  (N.  Y,)  100 ;  Young  v.  Dake,  5  N.  Y.  465  ;  Beear  v. 
Flues,  64  N.  Y.  518. 

In  England,  it  was  decided  by  Bolton  i\  Tomlin,  5  A.  &  E.  856,  that  parol 
leases  valid  as  being  witliin  limited  period  (three  years),  provided  by  the  second 
section  of  the  Statute  of  Frauds,  are  not  within  the  provisions  of  tlie  fourth 
section  requiring  all  agreements  concernirig  an  interest  in  land  or  not  to  be 
performed  in  one  year,  &c.,  to  be  in  writing,  and  hence  not  affected  by  it.  2 
Reed  on  St.  of  Frauds,  sec.  815,  and  that  doctrine  has  been  followed  as  a  rule 
in  America;  but  there  are  a  number  of  states  where  a  contrary  doctrine  has 
been  held.     Same,  and  see  cases  cited. 

211 


*128  THE   LEASE.  [Ch.  V.  S.  2. 

Vict.  c.  106,  s.  3,  is,  that  an  instrument  not  under  seal  which 
purports  to  demise  or  let  premises  for  more  than  three  years 

from  the  making  thereof,  or  even  for  a  less  term,  if 
[*128]  the  *  rent  reserved  does  not  amount  unto  two-third 

parts  at  the  least  of  the  full  value  of  the  thing  de- 
mised, is  void  at  law  as  a  lease ;  ^  but  it  may  operate  as  an 
agreement  for  a  lease  (a),  even  at  law.  Since  the  above  act 
courts  of  law  will  construe  a  writing  rather  as  a  valid  agree- 
ment for  a  lease  than  as  a  void  lease  (h). 

Tenant  entering  under  void  lease.  —  If  the  tenant  enter  into 
possession  under  a  void  lease  he  thereupon  becomes  tenant 
from  year  to  3'ear  ^  upon  tlie  terms  of  the  writing,  so  far  as 
they  are  applicable  to  and  not  inconsistent  witli  a  yearly 
tenancy  (0-^     Such  tenancy  may  be  determined  by  the  usual 

(a)  Parker  r.  Taswell,  2  De  G.  &  J.  GifTord,  1  A.  &  E.  52  ;  Doe  d.  Thomp- 

559;    27    L.  J.,  Ch.    812;    Coweii    v.  son  r.  Amev,  12  A.  &  E.  479  ;  Klmtox 

Phillips,  33  Beav.  18.  v.  Lindley,"  3  M.  &  Gr.  498  ;  Lee  i-. 

(6)  Bond  r.  Rosling,  1  B.  &  S.  371 ;  Smith,  9  Excdi.  (3(52  ;    Beale  v.  Saun- 

30  L.  J.,  Q.  B.  227 ;  Rollason  r.  Leon,  ders,  3  B.  N.  C.  850   (as.sijjnce  under 

7  II.  &  N.  73 ;  31  L.  J.,  Ex.  96  ;  Tidey  void    lease)  ;    Doe    d.  Penninfrton  v. 

V.  Mollett,  16  C.  B.,  N.  S.  298 ;  S3  L.  Taniere,  12  Q.  B.  998,  1013 ;  Tress  v. 

J.,  C.  P.  235  ;  Hayne   v.  Cummings,  Savage,  4  E.  &  B.  36  ;  Pistor  v.  Cater, 

16  C.  B.,  N.  S.  421.  9  M.   &  W.  315;    Doe  v.  Browne,  8 

(c)  Doe  d.  Rigge  v.  Bell,  5  T.  R.  East,  165  ;  Cooch  v.  Goodman,  2  Q. 

472  ;  2  Sm.  L.  C.  96 ;  Richardson  v.  B.  580. 

^  Parol  leases.  —  "  In  some  states,  it  is  declared  that  no  action  shall  be 
maintained  upon  a  parol  lease  which  exceeds  the  statutory  limitation  ;  in 
others,  the  lease  its.elf  is  declared  void."     2  Reed  on  St.  of  Frauds,  sec.  804. 

-  Leases  void  by  Statute  of  Frauds,  or  by  other  statutes.  Effect 
of  occupation  under  them.  —  In  the  majority  of  American  states,  as  well 
as  in  England,  the  tenant  entering  under  a  void  lease  for  years  becomes  a  ten- 
ant from  year  to  year.  P»eed  on  St.  of  Frauds,  sees.  804-5.  Kecder  v.  Sayre, 
70  N.  Y.  180;  Lounsbery  r.  Snyder,  31  Id.  514;  Blumenthal  v.  Bloomingdale, 
100  I-d.  558,  561  ;  People  >:  Rickcrt,  8  Cow.  226. 

In  Maine,  New  Hampshire,  and  Massachusetts  he  becomes  simply  a  tenant 
at  will ;  see  cases  cited  later.  In  Missouri,  where  the  stattite  is  similar  to  that 
of  Massachusetts,  the  general  rule  is  followed.  Same  citing  Kerr  r.  Clark,  19 
Mo.  1.32;   Hammon  v.  Douglas.  50  Id.  434. 

If  a  lessee  enter  tmder  void  lease  and  suspend  payinent  of  rent,  and  dis- 
(daim  by  conveying  in  fee,  the  Statute  of  Limitations  will  rim  from  the  sus- 
pension and  bar  claims  of  reversioner.  Webster  v.  Soutliey,  36  Ch.  D.  9  (so 
held  in  case  of  lease  for  charitabl*  use  not  complying  with  Mortmain  Act). 

•■'  Illegal  leases.- —  A  lease  executed  on  Sunday  is  absolutely  void  and  in- 
capable of  subsi'(iuent  ratification,  and  if  an  implied  tenancy  subsequently 
arises  from  entry  and  possession,  the  lease  cannot  be  resorted  to,  to  prove  the 
terms  of  the  tenancy.     Vinz  r.  Beatty,  61  Wis.  645,  649. 

212 


Ch.  V.  S.  2.]         WHAT   LEASES   MUST   BE   BY   DEED.  *129 

notice  to  quit  at  the  end  of  the  first  or  any  subsequent  year 
thereof  (c?)  ;  and  it  will  determine,  witliout  any  notice  to 
quit,  at  the  end  of  the  term  mentioned  in  the  writing  (i?). 
But  if  the  lessee  do  not  enter,  he  will  not  be  liable  to  an 
action  for  not  taking  possession  (/)  ;  nor,  on  the  other  hand, 
will  an  action  lie  against  the  lessor  for  not  giving  possession 
at  the  time  appointed  for  the  commencement  of  the  term 
but  before  the  lease  is  executed  ((/).  The  effect  of  the  act 
8  &  9  Vict.  c.  106  is  not  to  put  an  end  to  oral  leases,  but 
merely  to  superadd  to  such  leases  as  are  required  by  the 
Statute  of  Frauds  to  be  in  writing,  the  necessity  of  their 
being  hjf  deed. 

Leases  by  indenture.  —  First,  then,  of  leases  by  deed.  A 
deed  is  a  writing  sealed  and  delivered  by  the  parties,  and  is 
either  an  indenture  or  a  deed-poll.  If  a  deed  be  made  by 
more  parties  than  one,  there  ought  regularly  to  be  as  man}^ 
copies  of  it  as  there  are  parties,  and  each  formerly  was  cut 
or  indented  (instar  dentium)  on  the  top  or  side,  to  tally  or 
correspond  with  the  other,  which  deed  so  made  is  called  an 
indenture  (Ji).  Formerly,  if  a  deed  began  "•  This  indenture  " 
made,  &c.  and  the  parchment  or  paper  was  not  indented,  it 
was  not  an  indenture,  because  the  words  could  not  make 
it  indented ;  but  if  the  deed  was  actually  indented,  though 
there  were  no  words  of  indenture  in  the  deed,  yet  it  was  an 
indenture  in  law  ;  for  it  might  be  an  ind*enture  without  words, 
but  not  by  words  without  indenting  (^').  But  now  by  8  &  9 
Vict.  c.  106,  s.  5,  "  a  deed  executed  after  the  1st  October, 
1845,  purporting  to  be  an  indenture,  shall  have  the 
effect  of  an  indenture  *  although  not  actually  in-  [*129] 
dented."  All  the  parts  of  an  indenture  make  but  one 
deed,  and  each  part  is  of  as  great  force  and  effect  as  all  the 
parts  together ;  so  they  are  esteemed  the  mutual  acts  of  the 
respective  parties,  each  of  whom  may  be  bound  by  either  part 


{d)  Cole  Ejec.  3f),  222.  (cj)  Drnry  v.  Macnamara,  5  E.  &  B. 

(e)  Tress  ?•.  Savage,  4  E.  &  B.  36 ;  612  ;  Jinks  v.  Edwards,  11  Exch.  775. 

Cole  Ejec.  223,  444.  {!,)  Style,  459  ;  1  Inst.  171 ;  2  Blac. 

(/)  Inman  v.  Stamp,  1  Stark.  12  ;  Com.  205. 

Edge  V.  Strafford,  1  C.  &  J.  391 ;  1  (?)  Co.  Lit.  229. 
Tyr.  295. 

213 


*129  THE   LEASE.  [Ch.  V.  S.  2. 

of  the  same,  for  tlie  words  of  the  indenture  are  the  words  of 
each  party  (Z^)-^  When  the  several  parts  of  an  indenture  are 
interchangeably  executed  by  the  several  parties,  that  part  or 
copy  which  is  executed  by  the  grantor  is  usually  called  the 
orn/inal,  and  the  rest  are  duplicates  or  counterparts  (Z). 

Counterpart.  —  A  lessee  who  executes  the  counterpart  of 
a  lease  or  any  person  claiming  under  him,  cannot  dispute  its 
admissibility  in  evidence,  or  impeach  its  validity  on  the 
ground  of  the  original  lease  not  being  properly  stamped  (w). 
A  counterpart  is  primary  evidence  against  the  lessee,  and  all 
the  persons  claiming  under  him,  of  the  contents  of  the  lease 
and  of  the  execution  thereof  by  the  lessor  (ii). 

Discrepancy  bet-ween  counterpart  and  lease.  —  The  ordinary 
rule  is,  that  where  the  lease  and  the  counterpart  conflict,  the 
lease  prevails  ;  but  tliis  rule  does  not  apply  where  the  mistake 
is  clearly  in  the  lease.  So  it  was  held  by  the  Court  of  Ap- 
peal in  Burchell  v.  Clark  (o).  There,  by  lease  dated  in  1784, 
the  lessor  demised  the  premises  to  the  lessee  for  94|  years, 
"yielding  during  the  said  term  of"  91^  years  a  certain  rent. 
The  counterpart  spoke  of  the  term  as  91^  years  in  both 
instances.     The    court  (Kelly,   C.   B.,   diss.),  reversing   the 

{h)  Plowd.  134,  421 ;  Lit.  s.  370.  ton  v.  Kfrnig,  18  C.  B.  235;  Homes  v. 

(/)  2  Bhic.  Com.  296.  Pearce,  1  F.  &  F.  283 ;  Cole  Ejec.  170, 

Im)  Paul  V.  iMoek,  2  Y.  &  J.  116.  253. 

(n)  Burleigh  v.  Stibbs,  5  T.  R.  465;  (o)  Burchell  r.  Clark,  L.  R.,  2  C. 

Roe  (1.   West  v.  Davis,  7  East,  363;  P.  D.  88;  46  L.  J.,  C.  P.  115;  35  L. 

Hughes  V.  Clark,  10  C.  B.  005 ;  Hough-  T.  090 ;  25  W.  R.  334. 

'Execution  of  lease.  —  Examples:  AVIiero  the  covenants  are  mutual 
and  dependent  a  party  who  has  performed  his  covenants,  but  Tiot  sealed  the 
indenture,  may  sue  the  other  in  covenant.  Jennings  i-.  McComb,  112  Pa.  St. 
518,  522  (icrTrunkey,  J.). 

A  title  will  pass  hy  an  indenture,  sealed  only  hy  the  grantor,  if  acce])ted 
by  the  grantee.  Both  will  be  bound  by  the  covenants,  the  remedy  against 
one  being  assumpsit  and  against  tlie  other  covenant,  drove  v.  Hodges,  55  Pa. 
St.  504. 

An  indenture  of  lease  with  independent  covenants  signed  only  by  the  lessor 
is  an  effectual  demise  if  the  lessee  occupy  under  it,  Libbey  ;■.  Staples,  3i)  Me. 
166 ;  but  if  the  lessee  only  execute  and  do  not  occupy  the  lessor  cannot  enforce 
it,  Cleves  v.  Willoughby,"?  Hill  (N.  Y.)  83  {per  Beanlsley,  J.). 

A  sim|)Ie  contract  on  one  side  is  a  sufficient  consideration  for  a  covenant 
on  the  other.     School  Directors  r.  McHride,  22  Pa.  St.  215. 

A  lessee,  who  by  mistake  has  signed  a  lease  drawn  by  lessor  admitted  pot 
to  contain  the  agreement  of  the  parties  and  has  not  taken  possession,  is  not 
liable  for  rent.     Wynian  v.  Sperbeck,  i'>(\  Wis.  405. 

214 


Ch.  V.  S.3.]  FORM    OF   LEASE.  *1.30 

decision  below,  held  that  as  it  was  clear  that  there  was  some 
clerical  error  in  the  lease,  the  counterpart  might  be  used  to 
correct  it,  and  that  tlie  premises  were  recoverable  by  action 
brought  at  the  eind  of  the  91;^  years. 

General  requisites.  —  A  lease  by  deed  must  be  written  or 
printed :  it  may  be  in  any  character  or  language :  it  cannot 
be  exemplified  upon  wood,  leather,  (-loth,  or  the  like,  but 
only  upon  parchment  or  paper;  for  the  writing  or  printing 
upon  them  can  be  least  vitiated,  altered,  or  corrupted.  It 
must  also  have  the  regular  stamps  imposed  upon  it  by  statute 
for  the  increase  of  the  public  revenue  (^^). 

Effect  of  loss  of  lease.  —  The  estate  of  the  lessee  is  not 
determined  by  the  loss  or  cancellation  of  the  lease,  so  that 
the  existence  of  the  term  can  be  proved ;  for  the  estate  is 
derived  from  the  lessor,  and  not  from  the  lease  otherwise 
than  as  it  shows  the  intention  of  the  parties,  which  is  not 
altered  by  the  loss  or  cancellation  of  the  instrument  of 
demise  (^q).  Where  no  counterpart  can  be  found,  the 
landlord  is  entitled  to  inspect  and  take  *a  copy  of  [*130] 
the  lease  (r).  So,  on  the  other  hand,  in  a  proper 
case,  the  tenant  may  obtain  an  inspection  of  the  duplicate  or 
counterpart  lease  (.'<).  Under  an  agreement  that  the  lessor 
would,  at  the  request  and  costs  of  the  lessee,  grant  a  lease, 
the  lessor  is  not  entitled  to  charge  the  tenant  with  the  expense 
of  a  counterpart  (t). 


Sect.  3.  — Form  of  Lease. 

Statutory  form.  —  An  attempt  has  been  made  by  the  legis- 
lature to  shorten  leases,  and  accordingly  the  8  &  9  Vict.  c. 
124,  gives  a  concise  form,  which  may  be  adopted  if  parties 
desire  it  (w).  But  this  form  is  somewhat  inaccurate,  and  is, 
it  is  believed,  seldom  used  (x). 

(p)  See   the   Stamp    Act,   1870,  a  Doe  d.  Morris  v.  Roe,  1  M.  &  W.  207. 

consolifliitiiig  Act.  jmst.  Appendix  A.,  (,s)  Doe  d.  Child  v.  lioe,  1  E.  &  B. 

Sect.  7  ;  and  see  also  Sect,  i:]  of  thic  279 :  Cole  Ejec.  120,  200. 

chapter.  (/)  Jennings  v.  Major,  8  C.  &  P.  61 ; 

{q)  Read    !-.    Brookman,   ?>    T.    R.  see  post.  Sect.  13. 

151 ;  Lord  Ward  r.  Lumley,  5  H.  &  (?/)  See  post,  Appendix  A.,  Sect.  1. 

N.  87,  05(1;  29  L.  J.,  Ex.  322.  (.c)  Numerous  precedents  of  leases, 

(r)  Doe    V.    Slight,    1    Dowl.    103  ;  &.c.  are  given  in  Appendix  B.,  post. 

215 


*130  THE   LEASE.  [Ch.  V.  S.  3. 

Usual  words  of  demise.  —  The  usual  words  by  which  a  lease 
is  made  are,  "  demise  and  lease,"  or,  "  demise,  grant,  and  to 
farm  let ;  "  but  any  words  which  amount  to  a  grant  are  suffi- 
cient to  make  a  lease  (^) ;  and  it  may  be  laid  down  for  a 
rule,  that  whatever  words  are  sufficient  to  explain  the  intent 
of  the  parties,  that  the  one  shall  divest  himself  of  the  pos- 
session and  the  other  come  into  it,  for  any  determinate  time, 
whether  they  run  in  the  form  of  a  licence,  covenant  or  agree- 
ment, are  of  themselves  sufficient,  and  will  in  construction 
of  law  amount  to  a  lease  for  years  as  effectually  as  if  the 
most  proper  and  pertinent  words  had  been  made  use  of  for 
that  purpose ;  for  a  lease  of  years  being  no  other  than  a  con- 
tract for  the  exclusive  possession  and  profits  of  the  land  on 
the  one  side,  and  a  recompense  of  rent  or  other  income- on  the 
other,  —  if  the  words  made  use  of  are  sufficient  to  prove  such 
a  contract,  in  whatsoever  form  they  are  introduced,  or  how- 
soever variously  applicable,  —  the  law  calls  in  the  intent  of 
the  parties,  and  moulds  and  governs  the  words  accordingly 
(2).^  Where  the  owner  in  fee  of  premises  demised  them 
for  a  term  of  999  years,  and  afterwards  released  to  the  lessee 
the  reversion  in  fee  ;  and  the  latter,  by  indenture  reciting  the 
demise,  did  "grant,  bargain,  sell,  assign,  and  set  over  "the 
premises  for  the  residue  of  the  term  of  999  years :  —  held, 
that  there  was  a  resuscitation  of  the  term  by  virtue  of  these 
words  (a).     In  Cottee  v.  Richardson,  the  plaintiff  in  consid- 

(//)  Co.  Lit.  45;  2  Blac.  Com.  318.        distinction  between  lease  and  licence, 
(2)  Bac.    Abr.     tit.     Leases     (K)  ;       see  aiitr,  124. 
Smith  L.  &  T.  84,  85  (2nd  ed.).     For  (<()  Deiin  d.  Wilkins  v.  Kemeys,  9 

East,  3G0. 

^Leases  combined  v^ith  other  contiacts.  —  An  agreement  by  one  to 
convey  and  other  to  buy  in  five  years  and  to  occu])y  and  jiay  interest  on  pur- 
chase-money meantime  creates  tenancy  from  year  to  year.  Doe  d.  Cliff  v. 
Connaway,  Ber.  (N.  B.)  574. 

A  contract  of  sale  with  delivery  of  possession  conditioned  if  not  conii)U'teii 
to  pay  for  use  creates  a  tenancy.     Fairbank  v.  riiel|)s,  22  Pick.  535. 

Morff,'af;es  are  sometimes  made  in  Enj^iand  witli  attornment  clauses  givinj; 
power  to  distrain.  Tliey  are  held  to  constitute  bills  of  sale  of  the  seized 
projierty  under  Bills  of  Sale  Act,  1878,  41  &  42  Vict.  c.  31,  s.  G,  and  unless 
as  within  exception  the  power  to  distrain  is  consociuent  upon  mortt;at;ees 
takinj;  jiosscssion  and  demising  to  mortgagor.  lie  Willis,  ex  parte  Ken- 
nedy, 21  Q.  B.  I).  384.  Under  a  mortgage  demise  trade  fi.vtures  will  pass  if 
conveyed  by  words  sufficient  to  convey  them  in  mortgage.  Southport  &  W. 
Lancashire  Haidting  Co.  i,-.  Thompson,  37  Cii.  1).  04. 

21G 


Cii.  V.  S.  3.]  FORM   OF   LEASE.  *131 

eration  of  530Z.  to  be  paid  by  A.  demised  to  him  premises 
for  55  years  at  the  yearly  rent  of  84?.,  and  subject 
to  *  covenants  to  repair,  &c.  The  consideration  not  *[131] 
having  been  paid,  A.  assigned  to  the  plaintiff  the 
residue  of  the  term  then  unexpired,  subject  to  the  rents  and 
covenants,  and  with  a  power  of  sale.  In  pursuance  of  that 
power  the  plaintiff,  in  consideration  of  500/.  "  bargained, 
sold,  assigned,  and  transferred,  and  set  over  "  to  the  defend- 
ant the  said  premises,  to  hold  "for  the  residue  of  the  term 
of  55  years,"  subject  to  the  yearly  rent  of  84/.,  and  the 
covenants  contained  in  the  lease  to  A. ;  and  the  defendant 
covenanted  to  pay  the  rent  and  perform  the  covenants. 
The  defendant  having  entered,  it  was  held,  that  although  the 
mortgage  by  A»  to  the  plaintiff  operated  as  a  merger  of  the 
term  originally  granted,  yet  the  assignment  by  the  plaintiff 
to  the  defendant  created  a  new  lease  for  the  residue  of  the 
unexpired  term,  and  consequently  the  defendant  was  liable 
on  the  covenants  (J). 

Lease  must  show  intention  to  demise.  —  Although  no  specific 
words  are  necessary  to  create  a  lease,  yet  there  must  be  words 
used  which  show  an  intention  to  demise :  therefore,  where  a 
lessee  of  tithes  agreed  with  the  owner  of  lands,  for  certain 
collateral  considerations,  not  to  take  tithes  in  kind  from  the 
tenants  of  the  lands  for  twelve  years,  but  to  accept  a  reason- 
able composition  not  exceeding  3s.  6^:?.  per  acre,  it  was  ad- 
judged to  be  no  lease  (c).  Where,  on  the  letting  of  land  to 
a  tenant,  a  memorandum  was  drawn  up,  the  terms  of  which 
were,  that  he  should  on  a  future  day  bring  a  surety  and  sign 
the  agreement,  neither  of  which  he  ever  did ;  it  was  held, 
that  the  memorandum  was  a  mere  unaccepted  proposal,  and 
did  not  operate  as  a  lease  ((7).  An  agreement  bearing  even 
date  with  a  lease,  b}^  which  it  was  agreed  that  the  lessor 
should  manage  the  farm  leased  for  the  lessee  ;  the  lessee 
giving  12s.  a  week  to  the  lessor,  and  "  allowing  him  and  his 
family  to  reside  and  have  the  use  of  the  dwelling-house  and 


(6)  Cottee  v.  Richardson,  7  Exch.  (c?)  Uoe  d.  Bingham  v.  Cartwright, 

148.  3  B.  &  A.  326. 

(c)  Brewer  v.  Hill,  2  Anstr.  413. 

217 


*132  THE   LEASE.  [Ch.  V.  S.  3. 

furniture  free  of  rent:  "  has  been  held  not  to  be  a  lease  (c). 
Where  a  contract  was  made  between  A.  and  B.,  that  B. 
should  receive  certain  sums  of  money  from  A.,  and  should 
build  certain  houses  on  A.'s  land,  and  procure  responsible 
tenants  for  the  same  at  a  given  rate,  and  himself  pay  the 
rent  from  a  certain  day  till  he  procured  such  tenants :  it  was 
held  that  no  tenancy  was  created  between  A.  and  B.  (/). 

Particular  words  -which  have  been  decided  upon.  —  The  word 
"  dedi "  is  said  to  be  a  sufficient  word  to  make  a  lease  for 
years  (^),  and  even  a  "  licence  "  to  inhabit  or  enjoy  (/^),  if  it 
give  an  exclusive  right  to  occupy  (Q,  may  have  the  same 

effect.  The  words  "covenant,  grant,  and  agree" 
[*lo2]  that  A.  shall  have   the  lands  for  so  many   *  years, 

enure  as  a  lease  for  years  (Jc) ;  so  the  word  "  cove- 
nant "  will  make  a  lease,  though  the  words  "  grant  and  agree  " 
be  omitted  (T).  So  a  covenant  "to  stand  seized,"  if  made  by 
the  owner,  or  a  covenant  for  quiet  enjoyment  (???)  is  a  lease 
(ri)  :  for  a  covenant  together  Avith  an  entry  amounts  to  a 
lease ;  but  a  covenant  merely  does  not  vest  the  estate  m  the 
lessee,  but  only  gives  him  a  right  to  enter  and  possess  it ; 
and  therefore  the  estate  is  not  vested  in  him  till  actual 
entiy  (o). 

Interesse  termini.  —  A  lease,  however  formal  (not  being  a 
bargain  and  sale  under  the  Statute  of  Uses),  creates  only  an 
interesse  termi'ni  before  entry  (|>).^ 

(e)  Doo  (1.  Hughes  );.  Dcrry,  0  C.  &  (/)  Richards  ?'.  Scly,  2  Mod.  80. 

P.  494  ;  Mayliew  v.  Suttlc,  4  E.  &  B.  {in)  Doe  d.  Pritchard  v.  Do(hl,  5  B. 

.S47.  &  Adol.  G80. 

(/)  Taylor  v.  Jackson,  2  C.  &  K.  22.  («)  Right  d.  Bassett  v.  Thomas,  3 

(f])  Co.  Lit.  301  b;  Riglit  d.  Green  Burr.  1441,  144(J ;  1  W.  Bhic.  44(5. 

t'.  Proctor,  4  Burr.  2209.  (o)  Copley  v.  Ilepworth,  12  Mod.  1  ; 

(/()  Hall  V.  Seahriglit,  1  Mod.  14.  Co.  Lit.  37. 

(0  Reg.  f.  Morrish,  32  L.  J.,  M.  C.  ( />)  Cole    Ejec.    459;    Barnett    v. 

245.  Karl    of    Guildford,    11     Exch.     19 

(Jc)  Whitlock  V.  Horton,  Cro.  .lac.  Anderson    i;.    Radcliff,    E.    B.    &    E. 

91,  800. 

'  See  4  Kent's  Com.  (13th  ed.)  sec.  97.  It  lias  been  held  that  a  lessee 
under  a  valid  subsisting  lease  had  power  to  sublet,  Chung  Yow  ;>.  IIoj)  Cliong 
11  Ore.  220,  and  tiiat  under  an  oral  lease  he  could  not  sue  for  posse,>isioii. 
Moore  v.  Kay,  5  A.  R.  (Ont.)  201  ;  Marrin  v.  Graver,  8  Ont.  39,  40. 

A  lessee  under  oral  lease  for  term  of  years  eoininencing  in  fiitttm,  after 
entry,  is  tenant  from  year  to  year.  Brewing  v.  Berrynian,  2  I'ugs.  (N.  B.) 
115  {per  Allen,  J.). 

218 


Cii.  Y.  S.  4.]  CONSTRUCTION   OF   LEASE.  *133 

Sect.  4.  —  Construction  of  Lease. 

Whether  lease  or  agreement.  —  Before  tlie  Act  of  1845  (8 
&  9  Vict.  c.  106),  s.  3  required  all  leases  for  more  than  three 
years  to  be  by  deed,  questions  very  frequently  arose  whether 
a  particular  instrument  was  intended  to  operate  as  an  actual 
lease,  or  merely  as  an  agreement  to  grant  one.^  The  decis- 
ions were  numerous  and  conflicting  (cf)^  but  as  the  Act  of 
1845  has  very  considerably  diminished  their  importance,  it  is 
sufficient  to  state  here  that  their  general  effect  may  be  taken 
to  be  that  the  intention  of  the  parties  was  considered,  and 
that  the  courts  would  construe  the  document  very  liberally 
in  order  to  effectuate  that  intention  (r). 

Effect  of  void  lease.  —  A  written  contract  not  under  seal 
made  since  the  Act  of  1845  for  a  longer  term  than  three 
years,  or  for  three  years  to  begin  from  a  subsequent  day,  or 
even  for  a  less  term  if  the  rent  reserved  is  less  than  two- 
thirds  of  the  full  improved  value  of  the  thing  demised,  can- 
not operate  as  a  lease,  or  create  any  term,  it  being  "  void  at 
law."  ^  But  it  may  operate  as  an  agreement  for  a  lease  (.s), 
and  so  be  enforced  in  equity  by  a  decree  for  a  specific  per- 
formance (^),  or  even  treated  as  an  actual  lease  (?().  An 
action  at  law  may  be  maintained  upon  it  for  not  granting, 
or  hot  accepting,  as  the  case  may  be,  a  lease  pursuant  to 
such  contract  (v)  ;  but  not  an  action  for  not  giving 
possession  at  the  time  *  appointed  for  the  commence-  [*133] 
ment  of  such  lease,  because  the  possession  bargained 
for  is  not  a  possession  as  tenant  at  will  or  from  year  to  year, 
but  a  possession  for  a  term  of  years  to  be  created  by  the 

(?)  See  Chapman  v.  Bluck,  4  B.  N.  (t)  Parker  v.  Taswell,  2  De  G.  &  J. 

C.  187;  Chapman  v.  Turner,  6  M.  &  559;    27    L.  J.,    Ch.    812;    Cowcn  v. 

W.  100;  Rawson  v.  Eieke,  7  A.  &  E.  Phillips,  33  Beav.  18. 

451.  («)  See  Walsh  v.  Lonsdale,  21  Ch. 

(r)  See  Poole  y.  Bentley,  12  East,  D.  9,  and  p.  86,  anie;  but  that  case 

168.  has  no  application  to  a  void  lease  not 

(s)  Tidey  v.  Mollett,  10  C.  B.,  N.  S.  capable   of    being   construed    as    an 

298;  33  L.  J.,  C.  P.  235;    Hayne  v.  agreement  for  a  lease. 

Cummings,  16  C.  B.,  N.  S.  421  ;  over-  {v)  Bond  v.  Kosling,  1  B.  &  S.  371; 

ruling  Stratton  v.  Pettitt,  16  C.   B.  30  L.  J.,  Q.  B.  227. 
420. 

1  See  ante,  sec.  2,  notes. 

219 


*133  THE   LEASE.  [Ch.  V.  5.  4. 

lease  (j:).     Such  last-mentioned  action  lies,  Loweyer,  upon  a 
contract  for  less  term  than  three  years  (y). 

Effect  of  entry  under  void  lease.  —  Eyen  when  the  Contract 
is  for  more  than  tliree  yeai-s.  if  the  tenant  be  allowed  to 
enter  and  take  possession  under  such  contract,  and  pajs  any 
of  the  rent  therein  expressed  to  be  reseryed.  a  tenancy  from 
year  to  year  ^"ill  be  thereby  created  upon  the  terms  of  such 
contract,  so  far  as  they  are  applicable  to  and  not  inconsistent 
with  a  yearly  tenancy  (z)-^  Actual  payment  of  rent  is  not 
always  essential;  if  the  payment  be  allowed  to  stand  oyer 
by  mutual  consent,  that  is  sufficient  (a) ;  payment  of  the 
rent  does  not  of  itself  create  a  tenancy  from  year  to  year,  but 
is  only  evidence  from  which  a  jury  may  find  the  fact  (6). 
WTiere  payment  of  rent  unexphiined  wotild  ordinarily  imply 
a  yearly  tenancy,  it  is  open  to  the  payer  or  receiyer  of  such 
rent  to  proye  the  circumstances  under  which  such  payment 
was  made  for  the  ptirpose  of  repelling  such  implication  (c). 
Until  there  has  been  a  payment  of  rent,  or  something  equiv- 
alent to  such  payment,  a  distress  cannot  be  made  for  the  rent 
expressed  to  be  reseryed,  no  actual  tenancy  at  an  agreed  rent 

(t)  DruTT  r.  Macnamara,  5  E.  &  B.  son  r.  Gifford,  1  A.  &  E.  52 ;  Smith 

612.  '  L.  i  T.  80, 81  (2Dd  ed.), 

(jr)  Jinks    r.   Edwards,    11    Exch.  (a)  Cox  r.  Bent,  5  Bing  185  :  Yin- 

775.  cent  r.  Godson,  24  L.  J.,  Ch.  122. 

(z)  Clayton  r.  Blakev,  8  T.  R.  3 ;  2  (6)  Jones  r.  Shears,  4  A.  &  E.  832 ; 

Smith  L.  C    102  (7tli  ed.)  ;  Tress  r.  Finlav  r.  Bristol  and  Exeter  R.  Co., 

Savage,  4  E.  &  B.  36;  Doe  d.  Penn-  7  Exch.  415,  420. 
ington  r.  Taniere,  12  Q.  B.  998,  1013;  (c)  Doe  d.  Lord  r.  Crago,  6  C.  R 

Lee  r.  Smith,  9  Exch.  662  ;  Beale  r.  90. 
Sanders,  3  Bing.  X.  C.  850;  Richard- 

-  Leases  void  as  imperfectly  executed  ,  effect  of  occupation  tmder 
them  — '  >ccupation  unitr  an  iniperli-ctly  e.vecuted  lease  lorvcars  will,  in 
the  majority  of  the  .American  states,  create  a  tenancy  from  year  to  year  upon 
the  terras  specified  in  the  written  lease.  Fougera  r.  Cohn,  43  Hun  (X.  Y.) 
454  ;  Laughran  r.  Smith,  75  X.  Y.  209.  (And  see  cases  of  occupancy  under 
parol  leases,  ante,  sec.  2,  notes.)  Though  lease  be  signed  by  neither  party,  if 
accepted  and  acted  upon  by  both  it  will  be  binding  upon  both.  Farmers'  Loan, 
Ac.,  Co.  V  St.  Jo.  &  Den.  City  R.  R.  Co.,  2  Fed.  Rep.  117  ;  1  McCrary,  247. 

Under  circumstances,  mere  temporary  possession  under  void  lease  will  not 
render  one  liable  as  tenant,  as  where,  in  a  void  coal-mining  lease,  one  entered 
and  prospected  for  coal,  but  did  not  mine.     Capper  r.  Sibley,  65  Iowa,  754. 

It  has  been  held  that  a  parol  lease  for  years  ^  with  entry),  even  though  it 
create  tenancy  from  year  to  year,  yet  will  expire  without  notice  at  the  end  of 
the  term.     Doe  d.  Parkinson  r.  Haul>tman,  Bert.  (X.  B.)  643. 

220 


Cii.  V.  S.  4.]  CONSTRUCTION  OF  LEASE.  *134 

having  been  created  (c?).  But  it  is  otherwise  with  respect 
to  an  agreement  for  a  lease  which  contains  an  express  stipu- 
lation for  an  intermediate  tenancy  at  the  rent  and  subject 
to  the  covenants  and  conditions  therein  mentioned  until  the 
lease  shall  be  prepared  (e).  A  yearly  tenancy  created  by 
entry  under  the  contract,  and  payment  of  any  of  the  rent 
therein  mentioned  (or  anything  equivalent  to  such  pay- 
ment), may  be  determined  at  the  end  of  the  first  or  any 
subsequent  year  of  the  term  mentioned  in  the  contract,  by 
the  usual  notice  to  quit  (/) ;  and  at  the  end  of  the  terni 
mentioned  in  the  contract  the  tenancy  will  expire  without 
any  notice  to  quit  (g')}  When  the  contract  is  for  a  lease  for 
twenty-one  years,  determinable  at  the  end  of  the  first  seven 
or  fourteen  years,  the  tenant  cannot  quit  at  the  end  of  the 
first  seven  or  fourteen  years,  ivithout  any  previous  'notice  (K). 

Lease  or  agreement.  —  It  is  very  seldom,  if  ever, 
that  any  question  now  arises  whether  a  *  contract  for  [*134] 
less  than  three  years  amounts  to  a  hnise  or  only  to 
an  agreement.  It  depends  upon  the  intention  of  the  parties, 
to  be  collected  from  the  writing,  and  from  collateral  circum- 
stances. If  it  contains  words  of  present  demise  ("doth  agree 
to  let,"  &c.),  altliough  to  hold  from  a  subsequent  day,  it  will 
amount  to  a  lease,  notwithstanding  a  more  formal  lease  is 
stipulated  for,  that  being  considered  only  as  a  further  assur- 
ance (i).  The  question  in  such  cases  is,  whether  the  parties 
intended  to  create  a  tenancy  before  the  execution  of  any  fur- 
ther instrument  (Jc^.  An  instrument  containing  an  express 
proviso  that  it  shall  not  operate  as  a  lease  but  only  as  an 
agreement,  will  be  constrned  to  be  a  mere  agreement,  not- 
withstanding it  contains  words  of  present  demise  (0-     Bnt 

((/)  Hesan    r.   .Tolinsnn,    2    Tuunt.  (/()  Chapman  r.  Towner,  6  M.  &  W. 

148;  Dunk  v.  Hunter,  5  B.  &  A.  322.  100. 

(e)  Pinero  v.  Judson,  0  Bing.  206;  (j)  Toole  v.  Rentier,  12  East,  1(58; 

Uollason  v.  Leon,  7  H.  &  N.  73  ;  31  L.  Tinero  v.  Judson,  6  Bing.  206;  Ander- 

J.,  Ex.  96;  Anderson  v.  Midland  R.  son  v.  Midland  R.  Co.,  3  E.  &  E.  614; 

Co.,  3  E.  &  E.  614 ;  30  L.  J.,  Q.  B.  04.  30  L.  J.,  Q.  B.  94. 

(/)  Doe  d.  Thomson  v.  Amey,  12  (/,•)  Smith  L.  &  T.  85. 

A.  &  E.  476;   Cole  Ejec.  36,  222,"  444.  (/)  Perring  r.  Brook,  1  Moo.  &  R. 

(if)  Tress  v.  Savage,  4  E.  &  B.  36.  r)10;   7  C.  &  P.  360. 

1  See  Note  1. 

221 


*135  THE   LEASE.  [Ch.  V.  S.  4. 

if  it  contains  a  clause  to  the  following  effect,  viz. :  "  And  it 
is  hereby  mutuallj-  agreed  tliat  these  presents  shall  operate  as 
an  agreement  onl}-,  and  that  until  a  lease  shall  be  executed, 
the  rents,  covenants,  and  agreements  agreed  to  be  therein 
reserved  and  contained  shall  be  paid  and  observed,  and  the 
several  rights  and  remedies  shall  be  enforced,  in  the  same 
manner  as  if  the  same  had  been  actually  executed ; "  and  the 
tenant  enters  into  possession  under  such  agreement,  the  con- 
cluding stipulation  will  create  an  actual  tenancy  at  a  fixed 
rent,  for  which  a  distress  may  be  made  (?»).  So  where  an 
agreement  for  a  lease,  to  contain  certain  specified  covenants, 
concluded  thus :  ''And  in  the  meantime  and  until  such  lease 
shall  be  executed,  to  pa}^  the  said  yearly  rent,  and  to  hold 
the  same  premises,  subject  to  the  covenants  above  men- 
tioned :  "  it  was  held  that  the  latter  words  amounted  to  an 
actual  demise  (w).^ 

General  rules  for  construction.  —  Deeds  —  including,  of 
course,  leases  by  deed — being  the  highest  description  of  pri- 
vate written  documents  are  themselves  the  best  evidence  of 
the  facts  which  they  contain,  the  circumstances  which  they 
relate,  and  their  makers'  intentions.  In  their  construction, 
regard  must  be  had  to  all  their  parts ;  and  general  words 
may  be  restrained  by  particular  recitals  (o).  Where  the 
recitals  in  a  lease  stated  that  a  sum  of  money  which  was  in 
part  to  be  given  for  fixtures  was  part  of  the  consideration 
for  the  lease,  it  was  held,  that,  whether  the  lessee  would  or 
would  not  be  estopped  by  it,  he  was  not  l)ound  to  execute 
such  a  lease  (jt?).     If  a  deed  may  operate  in  two  ways,  the 

one  consistent  with  tlie  intent  of  the  parties,  and  the 
[*135]  other  repugnant  to  it,  the  courts  *  will  put  such  a 

construction  on  it  as  to  give  effect  to  the  intent  (</)  ; 

(wj)  Anderson  v.  Miillan.l  "R.  Co.,  8  Adol.  175;  Bain  v.  Cooper,  9  M.  &  W. 

E.  &  E.  614;  .30  L.  J.,  Q.  B.  04.  701  ;  Mnjor  v.  Salisbury,  2  D.  &  L. 

(n)  Pinero  t>.  .Tmlson.  <i  Bing.  200 ;  7()3,  7(>8  ;  Doe  d.  White  v.  Osborne, 

Ilollason  V.  Leon,  7  H.  &  N.  73 ;  .31  L.  4  .Fur.,  O.  S.  041,  C.  P. 

.T.,  Ex.  00.    Compare  these  cases  witli  ( p)  Vonhollen  i'.  Knowles,  12  IVl. 

Ilolhind  r.  Kensington  Vestry.  L.  II.,  &  W.  002. 

2  C.  P.  r,0.-);  .30  L.  .7.,  M.  C.  lOf).  (,/)  Solly   ?•.  Forbes,  4   Moo.   448; 

(o)  I'ayler  v.  lloniersliani,  4  M.  &  llotliam  v.  East  India  Co.,  1  T.  R. 

8.  423;   Simons  v.  Johnson,  .3  B.  iS:  03S. 

1  See  ante,  Ch.  4,  sec.  3,  notes. 

222 


Cii.  V.  S.  4.]  CONSTRUCTION    OF    LEASE.  *135 

for  deeds  must  be  constriKited  so  as  to  operate  according  to 
the  intention  of  the  parties,  if  by  hiw  they  may ;  and  if  they 
cannot  operate  in  one  form  they  will  in  another  (r).  Where 
a  material  word  appears  to  have  been  omitted  in  a  lease  by 
mistake,  and  other  words  cannot  have  their  pioper  effect 
unless  it  be  introduced,  such  lease  must  be  construed  as  if 
that  word  were  inserted,  although  the  particular  passage 
where  it  ought  to  stand  conveys  a  sufficiently  distinct  mean- 
ing without  it  (s).  An  instrument  of  demise  was  produced 
in  evidence,  by  which  the  plaintiff  agreed  to  let  for  the  term 
of  one  year  fully  to  be  complete  and  ended ;  most  of  the 
subsequent  stipulations  in  the  leases  were  wholly  inappli- 
cable to  a  tenancy  determinable  by  a  notice  to  quit;  the 
document  appeared  on  the  face  of  it  to  have  originally  con- 
tained words  creating  a  tenancy  from  year  to  year,  which 
were  struck  out,  and  the  above  words  as  to  the  term  only 
remained ;  it  was  held,  that  the  words  struck  out  might  be 
looked  at  to  show  what  the  intention  of  the  parties  was ; 
that  the  tenancy  was  for  a  single  year  only  ;  and  that  the 
terms  inapplicable  to  such  a  tenancy  must  be  considered  as 
expunged,  or  as  only  applicable  in  case  the  tenancy  should 
continue  (/!).  General  words  at  the  end  of  a  particular  spe- 
citication  will  not  pass  an}^  property  of  a  different  nature 
from  that  particularly  mentioned  (?<). 

Parol  evidence  inadmissible. — The  general  rule  with  regard 
to  the  admission  of  parol  evidence  to  explain  the  meaning, 
or  to  add  to,  vary  or  alter,  the  express  terms  of  a  deed,  is, 
that  it  shall  not  be  admitted  (.'c).^     Thus  where  property  has 

(r)  Goorltitle  (/.  Edwards  v.  Bniley,  Breacli,  7  B.  &  C.  96  ;  Hare  v.  Horton, 

Covvp.   600;    Shep.    Touch.   81    (sec.  5  B.  &  Adol.  715;  Reg.  r.  Nevill,  8  Q. 

13).  B.  452,  40.3  ;  East  London  W.  W.  Co. 

(,s)  Wright  V.  Dickson,  1  Dow,  114,  v.  Trustees  of  Mile  End  Old  Town,  17 

147.  Q.  B.  512  ;  Lyndon  v.  Stanbridge,  2 

(/)  Strickland  v.  Maxwell,  2  C.  &  H.  &  N.  51. 
M.  539.  (.r)  Ros.  Ev.  17  (13th  ed.). 

(»)  Anon.,  Lofft,  398;  Sandinian  ;;. 

1  Parol  evidence  -when  not  admissible  to  vary,  —  McKcnzie  v.  Mc- 
Glaughlin,  8  Ont.  Ill  (oral  evidence  inadmissible  to  prove  reservation  in  lease 
of  right  to  put  show  cases  in  part  of  demised  premises)  ;  Ala.  Gold  Life  Ins. 
Co.  I'.  Oliver,  78  Ala.  158;  Jungcrman  v.  Bovec,  19  Cal.  354  (parol  evidence 
of  reservation  to  lessee  of  right  to  remove  buildings  erected  by  him  inadmissi- 

223 


*136  THE  LEASE.  [Cii.  V.  S.  4. 

been  conveyed  by  a  deed,  parol  evidence  of  an  agreement  to 
apportion  the  rent  of  tlie  current  quarter,  contrary  to  the 
terms  of  the  deed  is  inadmissible  (^).^  So  parol  evidence  is 
inadmissible  to  show  that  a  particular  close  was  intended  to 
be  included  in  or  to  be  excluded  from  the  deed  (2). 

Exceptions.  —  The  exceptions  to  such  rule  are^ — 1,  where, 
although  the  deed  is  clearly  enough  expressed,  some  ambi- 
o-uitv  arises  from  extrinsic  circumstances  ;  2,  wliere  the  lau- 
guage  of  a  charter  or  deed  has  become  obscure,  and  the 
construction  doubtful  from  antiquity ;  3,  where  the  grant 
appears  uncertain,  owing  to  a  want  of  acquaintance  with  the 
grantor's  estate  ;  4,  where  it  is  important  to  show  a  different 
consideration    consistent   with   but   not   repugnant   to   that 

stated  in  the  deed  itself ;  5,  where  it  becomes  neces- 
[*136]  sary  to  show  *  a  different  time  of  delivery  from  that 

at  which  the  deed  purports  to  have  been  made ;  6, 
where  it  is  sought  to  prove  a  customary  right  not  expressed 
in  the  deed,  but  which  is  not  inconsistent  with  any  of  its 
stipulations ;  7,  where  fraud  or  illegality  in  the  formation  of 

0/)  Flinn  v.  Calow,  1  M.  &  G.  589.       Norton  r.  Webster,  12  A.  &  E.  442; 
(z)  Meres  v.  Ansell,  3  Wils.  275;       Barton  v.  Dawes,  10  C.  B.  201.     And 
Hope  V.  Atkins,  1  Price,  143;  Doe  d.       see  Minton  v.  Geiger,  28  L.  T.  449. 

ble)  ;  Taylor  v.  Soldati,  08  Cal.  28  (oral  permission  to  pastnre  more  cattle  than 
written  lease  allows  is  not  valid  against  assignee  of  the  reversion)- 

1  Subsequent  oral  promises,  -when  nudum  pactum.  —  A  subsequent 
oral  additional  agreement,  not  fonnded  on  new  consideration,  is  void  as  nudum 
pactum.  Libbey  v.  Tolford,  48  Me.  31(>  (subsequent  promise  to  repair)  ;  Gill 
I.-.  Middleton,  105  Mass.  477,  478  {per  Ames,  J.)  ;  Bowditcli  v.  Cliickering,  139 
Mass.  283  (subsequent  agreement  of  lessor  to  pay  taxes  which  lessee  had 
covenanted  to  pay,  void)  ;  Proctor  i\  Keith,  12  B.  Mon.  (Ky.)  252  (agreement 
of  lessor  to  repair  fencing  which  lessee  had  covenanted  to  repair,  void). 

2  Subsequent  qualifying  agreements,  when  valid.  —  It  has  been  held 
that  a  scnled  lease  cannot  lie  changed  by  a  subsequent  executory  parol  agree- 
ment,    lireher  v.  Reese,  17  111.  App.  545. 

A  subsequent  oral  agreement,  however,  if  executed  or  fonnded  on  new 
consideration  may,  however,  effectually  qualify  the  relations  of  the  i)arties. 

For  example  :  a  lessee  may  relinquish  or  lease  back  to  the  lessor  a  part  of 
the  demised  premises,  in  consideration  of  lessee's  failure  to  keep  his  cove- 
nants. Blumenthal  r.  Bloomingdale,  100  N.  Y.  558.  The  efficacy  of  tlie  new 
arrangement  as  an  indepemlent  transaction  is,  of  course,  ([UMlilii'd  by  the  pro- 
vi.«ion8  of  the  Statute  of  Frauds. 

A  lessee  may  orally  sublet  or  assign  part  of  the  premises  to  the  lessor, 
liounsbery  v.  Snyder,  31  N.  Y.  514. 

224 


Ch.  V.  S.  4.]  CONSTRUCTION    OF   LEASE.  *136 

the  deed  is  relied  on  to  avoid  it.^  If  a  clause  in  a  deed  be  so 
ambiguously  or  defectively  expressed,  that  a  court  of  justice 
cannot,  even  by.  reference  to  the  context,  collect  the  meaning 
of  the  parties,  it  will  be  void  on  account  of  uncertainty  (a). 
Hut  this  is  the  last  rule  of  construction  ever  resorted  to.^ 

Cases  illustrative.  —  Where  a  party  granted  a  manor  by  a 
particular  name,  and  he  had  two  manors  of  that  name,  parol 
evidence  was  admitted  to  show  which  of  them  he  meant ;  ^ 
and  where  there  was  a  demise  of  premises  in  Westminster, 
late  in  the  occupation  of  A.,  particularly  describing  them, 
part  of  which  was  a  yard,  parol  evidence  was  received  to 
show  that  a  cellar  situated  under  that  yard,  but  which  was 
then  in  the  occupation  of  B.,  another  tenant  of  the  lessor,  was 
not  intended  to  pass  (6).  Evidence  of  usage  was  received 
to  show  that  a  room  which  had  not  been  occupied  with  a  cer- 
tain messuage  did  not  pass  under  a  demise  of  that  messuage, 
together  with  all  the  rooms,  chambers,  and  appurtenances 
thereunto  belonging  (c).  Where  a  lease  grants  a  right  of 
way,  evidence  may  be  received  of  the  state  of  the  premises 
at  the  time  of  granting  the  lease,  and  then  the  judge  will  put 
a  construction  on  the  lease  as  to  the  line  along  which  the 
way  granted  runs ;  but  if  it  is  uncertain  on  the  words  which 

(a)  Anon.,  1  Mod.  180,  Doe  d.  ^.  701 ;  Paddock  v.  Fradley,  1  C.  &  J. 
Wyndham  v.  Carew,  2  Q.  B.  317.  90. 

(6)  Doe  d.  Freeland  v.  Burt,  1  T.  (c)  Kerslake  v.  White,  2  Stark.  508. 


1  Rights  of  third  party.  —  Parol  evidence  is  admissible  in  behalf  of  third 
party  (a  prior  niorti^agee,  for  example)  to  disprove  statements  in  lease.  He 
may  prove  the  true  consideration  was  not  stated.  Roth  v.  Williams,  45  Ark. 
447,  449. 

-  Collateral  -written  agreements.  —  A  lease  maj'  be  qualified  by  a  col- 
lateral written  agreement.  The  collateral  agreement  may  consist  of  represen- 
tations contained  in  letters  from  lessor,  and  may  be  enforced  by  lessee.  Mar- 
tin c.  Spicer,  34  Ch.  D.  1  (an  injunction  issued  to  restrain  lessor  from  granting 
any  leases  whicli  did  not  (-ontain  restrictive  covenants). 

Lindley,  L.  J.,  said :  "  It  was  urged,  '  Why  did  j'ou  not  put  the  collateral 
contract  into  the  lease?  '  No  doubt  it  would  have  been  better,  but  it  does  not 
follow  that  you  cannot  make  a  collateral  contract  at  the  same  time  that  you 
make  a  lease." 

3  An  ambiguous  written  contract' may  sometimes  be  explained  by  evidence 
of  the  understanding  at  the  time.     Selden  v.  Williams,  9  Watts,  9. 

225 


*137  THE   LEASE.  [Ch.  V.  S.  4. 

of  two  ways  is  intended,  parol  evidence  may  be  given  to 
show  which  the  grantor  meant  (c?). 

Expression  of  technical  meaning.  —  Where  an  expression 
used  in  a  written  instrument  has  technical  meaning,  parol 
evidence  is  admissible  to  show  that  it  has  been  used  in  that 
sense,  and  not  in  its  ordinary  meaning  in  common  parlance, 
although  that  may  be  perfectly  clear  and  unambiguous  in 
itself;  therefore,  AA^here  a  lessee  of  a  coal  mine  covenanted 
to  get  the  whole  of  the  coals  "  not  deeper  than  or  below  the 
level  of  the  bottom  of  the  mine,"  at  a  particular  point,  it  was 
held,  that  parol  evidence  of  the  vmderstanding  amongst 
miners  was  admissible,  to  show  that  the  word  "level"  had  a 
particular  technical  meaning  different  from  its  ordinar}^  sig- 
nification of  "horizontal  line."  It  might  be  questionable 
whether  a  previous  agreement  between  the  parties  for  a 
lease  of  the  same  mine,  and  for  which  the  lease  in  question 
was  substituted,  was  also  admissible  in  evidence  for  the  same 
purpose  (e).  Again,  where  in  a  lease  of  a  rabbit  warren,  &c., 
the  lessee  covenanted  that  on  the  expiration  of  the  term  he 

would  leave  on  the  warren  10,000  rabbits,  the  lessor 
[*137]  paying  *  for  them  60/.  per  thousand,  it  was  held,  that 

parol  evidence  was  admissible  to  show  that,  by  the 
custom  of  the  country  Avhere  the  lease  Avas  made,  the  AA'ord 
"thousand,"  as  it  applied  t^  rabbits,  denoted  tAveh^e  hun- 
dred (/).  Where  the  lessee  of  a  coal  mine  coA^enanted  to 
pay  a  certain  share  of  all  such  sums  of  money  as  the  coals 
should  sell  for  at  the  pit's  mouth,  evidence  of  the  lessee's 
having  accounted  Avith  the  lessor,  and  paid  him  the  share  of 
the  money  produced  by  the  sale  of  coals  elscAvhere,  was  not 
considered  admissible  to  ex})lain  the  intention  of  tlie  par- 
ties (/y).  Where  a  lessee  made  an  agreement  for  a  lease,  and 
the  under-lessee  contiacted  to  erect  a  sliop-front  to  the 
house  ;  in  ejectment  for  a  forfeiture  for  not  erecting  the 
sliop-front,  it  Avas  held,  tliat  the  original  lease  by  Avhich  a 

(r/)  Osborne  v.  Wise,  7  C  &  P.  761.  (/)  Smith  v.  Wilson,  3  \\.  &  Adol. 

(e)  Clayton  !-•.  Orenson,  5  A.  &  E.       72H. 
.102;  4  N.  &  M.  «02  ;  (i  M.  W)4  ;  Shore  (7)  Clifton  r.   AValmsIey,  5  T.   R. 

V.  Wilson,  9  CI.  &  F.  305.  504  ;  (lerrard  v.  Clifton,  7  T.  R.  G70  ; 

1  li.  &  P.  524. 
226 


Cii.  V.  S.  4.]  CONSTRUCTION   OF   LEASE.  *138 

penalty  was  imposed,  if  the  lessee  allowed  a  trade  to  be 
carried  on  upon  the  premises,  was  not  admissible  in  evidence 
for  the  defendant  to  explain  the  meaning  of  the  words  "shop- 
front"  in  the  agreement  (A).  Since  the  passing  of  the  24 
Geo.  2,  c.  23,  for  altering  the  style,  a  lease  of  lands  by  deed, 
to  hold  from  the  feast  of  St.  Michael,  must,  unless  there  be  a 
custom  to  the  contrary,  as  in  Kent  (i),  be  taken  to  mean 
N'eiv  Michaelmas,  and  cannot  be  shown  by  extrinsic  evidence 
to  refer  to  a  holding  from  Old  Michaelmas,  unless  there  be 
a  custom,  or  a  reference  in  the  lease  to  a  prior  holding 
from  Old  Michaelmas  (/r).  But  this  rule  has  been  held  to 
relate  only  to  leases  by  deed;  for  in  a  lease  by  parol  made 
to  commence  at  Lady-Day,  evidence  is  admissible  to  prove 
that  by  the  custom  of  the  country  Old  Lady-Day  was  in- 
tended (Z).  If  there  be  any  ambiguity  or  contradiction  in 
expressing  the  time  of  the  connnenceraent  of  a  lease,  the 
lease  is  construed  beneficially  for  the  lessee,  on  the  principle 
that  every  man's  grant  shall  be  taken  most  strongly  against 
himself  Qni). 

Where  a  man  granted  an  estate  for  life,  without  saj-ing 
whether  it  was  for  his  own  life  or  for  that  of  the  grantee, 
parol  evidence  was  received  to  show  what  intereist  he  had  in 
the  estate  :  for  if  he  was  tenant  in  fee,  it  was  considered  that 
the  grantee  should  take  an  estate  for  his  own  life  ;  but  that 
if  the  grantor  himself  was  a  tenant  for  life  onl}^,  the  grantee 
would  take  an  estate  for  the  grantor's  life  only  (w). 

Evidence  of  custom.  —  The  express  terms  of  a  lease 
cannot  be  controlled  by  the  custom  of  the  *  country ;  [*138] 
but  if  the  lease  be  entirely  silent  as  to  the  time  of 
quitting,  evidence  of  the  custom  of  the  country  may  be  given 

(h)  Doe  d.  Nash  v.  Birch,   1  M.   &  terbury  r.  Wood,  supra;  Denn  d.  Pe- 

W.  402.  te.'s  V.  Hopkinson,  supra. 

(i)  Furley  d    Mayor,  &c.,  of  Can-  (m)    Anon.,  Dyer   261   b.,  pi.  28; 

terbury  v.  Wood,  1  Esp.  198.  Lilley  r.  Whitney,  Dyer,  272  a;  Sea- 

(k)  Doe  d.  Spicer  v.  Lee,  11  East,  men's  case,  Godb.  166;  Doe  d.  Davies 

312;  Doe  J.  Hall  v.  Benson,  4  B.  &  v.   Williams,   1   II.   Blac.  25;    Shep. 

A.  588;  Denn  d.  Peters  v.  Hopkinson,  Touch.  88,  s.  6. 

3  D.  &  R.  507;  Smith  v.  Walton,  8  («)  Smith  v.  Doe  (/.  Earl  of  Jersey, 

Bing.  235.  2  Brod.  &  B.  551;    3   Moo.  339;    7 

(/)  Doe  d.  Hall  v.  Benson,  4  B.  &  Price,  281 ;  2  Bligh,  290. 
A.  588  ;  Furley  d.  Mayor,  &c.,  of  Can- 

227 


*138  ,  THE   LEASE.  [Ch.  V.  S.  5. 

to  fix  the  time  (o).  Altliougli  no  riglit  to  an  away-going 
crop  is  reserved  in  a  lease,  if  there  are  no  covenants  which 
either  in  express  terms  or  by  implication  of  law  exclude  such 
right,  the  lessee  may  produce  parol  evidence  to  show  that 
he  is  entitled  to  such  awa3'-going  crop  by  the  custom  of  the 
country  (p).  So  evidence  of  custom  for  an  away-going 
tenant  to  provide  work  and  labour,  tillage  and  sowing,  and 
all  materials  for  the  same  in  his  away-going  year,  the  land- 
lord making  him  a  reasonable  compensation,  has  been  received, 
although  there  was  an  express  written  agreement  between 
the  parties,  when  that  agreement  was  not  inconsistent  with 
such  custom  (^). 


Sect.  5.  —  Description  of  the  Demised  Premises. 
(a.)    G-enerally. 

Parts  of  lease  by  deed.  —  A  lease  by  deed  usually  consists 
of  the  following  parts :  viz.,  1.  What  is  usually  called  the 
Pretnises,  which  contain  a  statement  of  the  date ;  the  names, 
addresses,  and  additions  of  the  parties  ;  the  recitals  (if  any) ; 
the  operative  words ;  the  description  of  the  parcels  demised 
and  the  appurtenances ;  also  any  exceptions  or  reservations 
thereout :  2.  The  Habendum^  or  that  part  which  lixes  the 
duration  of  the  term :  3.  The  Reddendum^  or  reservation  of 
rent :  4.  The  covenants :  5.  A  proviso  or  condition  for  re- 
entry for  non-=payment  of  rent  or  non-observance  of  cove- 
nants ;  or,  for  the  determination  of  the  term  by  notice  before 
the  expiration  thereof ;  e.g.,,  at  the  end  of  the  first  seven  or 
fourteen  years. 

The  premises.  —  The  Preiviises  in  a  lease  are  all  the  parts 
which  precede  the  habendum.  The  office  of  this  part  of  the 
lease  is  rightly  to  name  and  describe  the  lessor  and  lessee ; 

(o)  Webb  V.  riummcr,  2  B.  &  A.  400;  Favicll  r.  Qaskoin,  7  Exch.  21?, ; 

746.  21  L.  ,1.,  Ex.  85 ;  Muncey  v.   Dennis, 

(/))  Caldecott  i>.  Smytbics,  7  C.  &  1    II.  &  N.  210;  Holding  v.  Tigott,  7 

P.  808;    Wigglewortb  t-.  Dallison,  1  JVmg.  405. 

Doug.  201  ;  1  Sniitb's  L.  C.  598  (7Ui  (7)  Senior  v.  Armytage,  Holt,  197  ; 

C(l.);  Wilkins  u.  Wood,  17  L.  ,T.,  Q.  B.  llutton  v.  Warron,  1   M.  &  W.  400, 

319 ;  Hutton  v.  Warren,  1  M.  &  W.  47(5. 

228 


Cii.  V.  S.  6.]         DESCRIPTION   OF   DEMISED   PREMISES.  *139 

to  state  tlie  consideration  (r)  ;  to  set  forth  with  certainty 
the  thing  demised,  either  by  express  words,  or  by  that  which 
by  reference  may  be  reduced  to  a  certainty  ;  and  to  state  the 
exceptions  or  things  reserved,  if  any. 

Description  of  the  property.  —  With  respect  to  the  proper 
mode  of  describing  the  property  to  be  demised,  it  may  be 
remarked,  "that  corporeal  hereditaments  consist  wholly  of 
substantial  and  permanent  objects  ;  all  which  may  be 
*  comprehended  under  the  general  denomination  of  [*139] 
land  only ;  for  land  comprehends,  in  its  legal  signifi- 
cation, any  ground,  soil  or  earth  whatsoever;  so  the  word 
'  land '  includes,  not  only  the  face  of  the  earth,  but  every- 
thing under  it  or  over  it ;  ^  and  therefore  if  a  man  grant  all 
his  lands,  he  grants  thereby  all  his  mines  of  metal  and  other 
fossils,  his  woods,  his  waters,  and  his  houses,  as  well  as  his 
fields  and  meadows ;  ^  not  but  that  the  particular  names  of 
the  things  are  equally  sufficient  to  pass  them,  except  in  the 
instance  of  water,  by  a  grant  of  which  nothing  passes  but  a 
right  of  fishing ;  and  to  recover  the  land  at  the  bottom  of 
which,  it  must  be  called  so  many  '  acres  of  land  covered  with 
water.'  But  the  capital  distinction  is  this,  that  by  the  name 
of  a  castle,  messuage,  toft,  croft,  or  the  like,  nothing  else 
will  pass,  except  what  falls  Avith  the  utmost  propriety  under 
the  term  made  use  of  (though,  indeed,  by  the  name  of  a 
castle  one  or  more  manors  may  be  conveyed ;  and  e  converse, 
by  the  name  of  the  manor  a  castle  may  pass)  ;  but  by  the 
nam.e  of  land,  which  is  nomen  generalissimum,  everything 
terrestrial  will  pass"  (.s).-^     The  expressions  "arable  land, 

()•)  The  premium  or  fine,  if  any,  is  (s)  2  Blac.  Com.  18. 

generally  expressed  in  words  at  length. 

1  A  dwelling-house  is  ordinarily  realty,  Smith  v.  Grant,  56  Me.  255,  259. 
It  may  be  personalty,  if  built  upon  the  land  of  another,  with  his  consent  {per 
Kent,  J.,  supra). 

2  If  a  man  do  not  grant,  but  simply  demise  his  land,  things  beneath  the 
surface  do  not  pass.  Elwes  v.  Brigg  Gas  Co.,  33  Ch.  D.  562  {held,  that  a  pre- 
historic boat  found  beneath  the  surface  belonged  to  the  lessor). 

3  Growing  crops.  —  These  will  pass  by  a  devise  of  land,  and  do  not  belong 
to  the  executor,  Pratte  r.  Coffman's  Ex'r,  27  Mo.  424,  and  they  will  pass  by 
a  deed  without  reserve.  Crews  v.  Mountcastle,  1  Leigh  (Va.)  297,305  (a 
mortgage)  ;  Steele  v.  Farber,  37  Mo.  71  (a  mortgage)  ;  Baird  v.  Brown,  28  La. 
An.  842. 

229 


*139  THE  LEASE.  [Ch.  V.  S.  5. 

meadow  or  pasture  land,"  are  specific  descriptions  of  land, 
and  are  confined  to  land  of  that  particular  species ;  and  in 
general,  where  meadow  or  pasture  land  is  named,  it  must  be 
understood  of  ancient  meadow  or  pasture  (i).  The  words 
"  more  or  less  "  must  be  confined  to  a  reasonable  quantity  (w). 
"Where  the  description  is  untrue  in  part.  —  If  the  thing 
described  be  sufficiently  ascertained,  it  is  sufficient,  though 
all  the  particulars  are  not  true ;  as  if  a  man  demise  his 
meadows  in  B.  and  D.,  containing  ten  acres,  whereas  they 
contain  twenty  acres,  all  the  meadows  pass  (a;).     Whatever 

(0  Tresham  v.  Lamb,  2  Brownl.  46 ;  Esp.  229 ;  Cross  v.  Elgin,  2  B.  &  Adol. 
Guniiiiig  V.  Gunning,  2  Show.  8.  106. 

(»0   Day  V.   Fynn,   Owen,   133;    1  (x)  Com.  Dig.  tit.  Fait  (E.  4). 

If  the  crop,  being  fructus  indnstriales,  has  been  separately  sold  (though 
orall}')  prior  to  a  sale  of  the  land,  it  will  not  pass  by  the  subsequent  deed. 
Austin  V.  Sawyer,  9  Cow.  (N.  Y.)  39;  Newcomb  v.  Eamer,  2  Johns.  (N.  Y.) 
421. 

In  theory  of  the  law,  such  crops  are  personalty  even  when  growing  in  the 
soil.  See  Benjamin  on  Sales,  Kerr's  Ed.,  p.  116,  117,  notes.  It  has  been 
held  that  a  crop  of  winter  wheat  might  be  seized  on  execution  in  December, 
and  held  as  against  subsequent  seizure  in  August.  Whipple  v.  Foot,  2  Johns. 
(N.  Y.)  418;  though  in  Noble  v.  Smith,  2  Id.  52',  a  parol  gift  of  growing  corn 
was  held  invalid  for  want  of  an  actual  delivery,  and  Kent,  Ch.  J.,  expressed 
a  doubt  if  any  sufficient  delivery  could  be  made  other  than  by  placing  the 
vendee  in  possession  of  the  lanil. 

Some  of  the  cases  distinguish  between  sales  of  mature  and  sales  of  imma- 
ture crops.  By  the  majority  of  cases  this  distinction  is  now  disregarded. 
Benjamin  on  Sales,  Kerr's  Edition,  p.  117,  note.  As  to  parol  or  other  reserva- 
tions of  growing  crops,  see  }wst,  Ch.  V.,  sec.  10,  notes. 

Distinction  between  fructus  industriales  and  fructus  natiirales. 
—  There  is  a  distinction  betwein  such  fruits  as  are  tiie  products  of  man's 
annual  labor,  and  such  as  are  natural  (timber,  grass,  &c.).  (ienerally  the 
legal  title  to  the  latter  will  not  pass  except  by  an  instrument  sufficient  to  pass 
an  interest  in  the  land. 

It  has  been  held  in  England,  however,  that  even  in  case  of  such  products 
as  standing  timber,  &c.,  a  sale  of  the  property  to  be  immediately  or  season- 
ably removed  was  valid,  tiicHigh  not  executed  as  a  conveyance  of  realty.  Mar- 
shall V.  Green,  1  C.  P.  Div.  35.  The  doctrine  of  this  case  is  supi)orted  by  some 
American  cases  and  denied  by  many  otiiers,  the  latter  iiolding  that  standing 
timber  until  severed  is  realty.  Benjamin  on  Sales,  Kerr's  Edition,  pj).  116, 
117,  notes,  and  Austin's  Am.  Farm  Law,  p.  70. 

Manure.  —  Manure  made  on  farm  will  pass  b}'  deed  as  part  of  the  realty. 
Kitiredge  i\  Woods,  3  N.  II.  503;  Vehue  v.  Moshcr,  76  Me.  469;  Chase  v. 
Wingate,  68  Id.  204;  Norton  v.  Craig,  68  Id.  275;  Parsons  r.  Camp,  11  Conn. 
625,  529,  530;  and  an  away-going  tenant  (lannot  remove  it,  thougii  made  with 
his  own  fodder,  Lassell  v.  Iteed,  6  (Jreenl.  (Me.)  222,  though  it  has  been  held 
that  it  might  be  seized  on  execution  by  ids  creditor  during  the  term.  Staples 
u.  Emery,  7  Id.  201. 

230 


Ch.  V.  S.  5.]         UI<:SCRIl^riON    OF   DEMISED   PREMISES.  *140 

constitutes  the  essence  of  the  thing  granted,  or  is  parcel  of 
it,  will  pass  with  it,  although  it  be  accidentally  severed  at  the 
time  of  the  lease ;  therefore,  by  the  lease  of  a  mill,  the  mill- 
stone passes,  though  severed  at  the  time ;  so  by  the  lease  of 
a  house,  the  doors,  window  sashes,  locks,  keys,  &c.,  pass  as 
parcel  of  it,  although  by  accident  they  may  not  be  in  tlieir 
proper  places  when  the  lease  is  made.  A  man  may  demise 
his  farm,  which  may  comprehend  a  messuage  and  much  land, 
meadow,  pasture,  wood,  &c.,  thereunto  belonging,  or  there- 
with used ;  for  the  word  "  farm  "  properly  signifies  a  capital 
or  principal  messuage,  and  a  quantity  of  land  thereunto  aj)per- 
taining  (?/).  So  by  the  name  of  a  messuage,  he  may  pass 
a  house,  a  curtilage,  a  garden,  an  orchard,  a  dove-house,  a 
shop,  or  a  mill,  as  parcel  of  the  same  (2)  ;  so  the  word 
*  "  house  "  includes  everything  that  would  ordinarily  [*140] 
pass  by  that  name  (a),  the  like  of  a  cottage,  a  toft,  a 
chamber,  a  cellar,  &c.  (^).  Under  a  lease  of  all  that  part  of 
the  park  called  B.  situate  and  being  in  the  county  of  O.,  and 
now  in  the  occupation  of  S.,  lying  within  certain  specified 
abuttals,  with  all  houses,  &c.,  belonging  thereto,  and  which 
are  now  in  the  occupation  of  S.,  a  house  on  a  part  which  is 
within  the  abuttals,  but  not  in  the  occupation  of  S.,  will 
pass  (c).^  By  a  lease  of  all  that  part  of  the  townland  of  B., 
containing  509  acres,  arable,  meadow,  and  pasture,  bounded 
by  certain  boundaries,  it  was  held  that  400  acres  of  bog  and 

{y)  Shep.  Touch.  93  ;  Lord  Port-  tion  R.  Co.,  1  De  Gex  &  J.  446 ;  26 
man  i'.  Mill,  3  Jur.  356,  L.  C. ;  Good-  L.  J.,  Ch.  731;  Hewson  v.  South- 
title  V.  Paul,  2  Burr.  1089;  Goodtitle  Western  R.  Co.,  8  W.  R.  467;  Steele 
V.  Southern,  1  M.  &  S.  298.  v.  Midland  R.  Co.,  L.  R.  1  Ch.  Ap. 

(s)  Shep.  Touch.  94 ;  Doe  d.  Nor-  275. 
ton  V.  Webster,  12  A.  &  E.  442  ;  Cole  {l>)  Shep.  Touch.  94. 

V.  West  London  and  Crystal  Palace  (c)  Doe  d.  Smith  v.  Galloway,  5  B. 

R.  Co.,  27  Beav.  242;  28  L.  J.,  Ch.  &  Ad.  43;  compare  this  with  Martyr 

767.  V.  Lawrence,  2  De  Gex,  J,  &  S.  261. 

(a)  Grosvenor  v.  Hampstcad  Junc- 

1  Discrepancies.  —  In  case  of  a  discrepancy  between  distances  and 
boundaries  there  is  no  breach  of  the  covenant  of  seizin.  The  boundaries 
will  control.  Almon  v.  Woodill,  6  Russ.  &  Geld.  (N.  S.)  13.  If  a  building  is 
divided  into  two  tenements,  one  only  of  which  fronts  on  Endicott  Street,  a 
lease  of  a  building  on  Endicott  Street  will  pass  only  that  part.  Houghton  v. 
Moore,  141  Mass.  437. 

231 


*140  THE  LEASE.  [Ch.  V.  S.  5. 

land  reclaimed  from  bog  within  the  boundaries,  also  passed  (<?). 
If  garden  ground  be  let  for  years,  and  the  lessee  demise  part 
of  the  term  to  an  under-tenant,  who  builds  on  it,  by  a  grant 
of  the  garden  ground,  the  buildings  thereon  will  pass  (e). 
It  would  appear  that  a  lease  of  "  the  issues  and  profits  "  of 
land  would  pass  the  land  itself;  for  to  have  the  issues  and 
profits  is  the  same  thing  as  to  have  the  land  itself  (/)  ;  and 
it  has  been  held,  that  if  a  grant  be  made  of  a  boilery  of  salt, 
the  land  passes,  for  that  is  the  whole  profit  Q/').  If  in  a  lease 
the  demised  land  be  mentioned  and  described  as  meadow 
land,  no  other  evidence  is  necessary  to  prove  that  it  was 
meadow  land  at  the  commencement  of  the  term  Qi).  By  the 
grant  of  a  forest,  park,  chase  or  warren  in  the  soil  of  the 
grantor,  the  soil  as  well  as  the  privilege  passes ;  but  it  is 
otherwise  if  the  soil  be  another's  (i) ;  and  a  sheep  walk 
or  a  foldcourse  may  include  the  soil  by  the  custom  of  the 
country  (^). 

Fishery.  —  In  a  parish  settlement  case,  it  was  held  that  the 
lease  of  a  fishery  of  a  pond,  with  the  spear  sedge  and  the 
flags  and  rushes  growing  in  and  about  the  same,  passed 
the  soil  (J'). 

Ferry.  — If  a  lease  of  a  ferry  describes  it  as  a  ferry  both 
ways  across  a  river,  whereas  it  is  but  one  way  only,  yet  it 
will  pass  (m).  In  the  recent  Irish  case  of  Dwyer  v.  Rich  (m), 
the  lease  described  the  lands  demised  as  "bounded  on  the 
west  by  the  river  Shannon,"  and  as  containing  81^  acres  or 
thereabouts :  it  was  held  that  half  the  soil  of  the  bed  of  the 
river  passed  under  these  words,  although  a  map  annexed  to 
the  lease  showed  no  boundary  either  on  the  bank  or  the 
middle  of  the  river. 

■Way.  —  Where  an  annual  sum  Avas  payable  as  tenants' 
damages,  besides  a  way-leave  rent  for  a  coal  railway  passing 

(d)  Jack  I'.  Mclntyre,  12  CI.  &Fin.  (/)  Crorpwell's  case,  Dyer,  TOO  b. 

151.  (/.)  Iluddlcstonu  WooilrolTe,  2  Roll. 

(«)  Burton  v.  Brown,  Cro.  .Tac.  648.  R.  01. 

If)  Tarker  v.  I'lunibor,  Cro.  Eliz.  (/)  Rex  v.  Old  Alrosford,  1  T.  R. 

190'.  358. 

(f/)  Co.  Lit.  4  b.  (m)  Pim  v.  Curcll,  0  M.  &  W.  234. 

(h)  Birch  V.  Stephenson,  3  Taunt.  («)  Ir.  R.,  0  C.  L.  144,  Exch. 
469;  tjliipwith  v.  Green,  1  Stra.  010. 

232 


Cn.  V.  S.  5.]  DESCRIPTION   OF   DEMISED   PREMISES.  *141 

through  a  farm,  it  was  left  to  the  jury  to  say  whether 
*  the  land  covered  by  the  railway  passed  by  the  [*141] 
agreement  of  letting  to  the  tenant,  because  if  it  did 
the  cenant,  and  not  the  landlord,  was  entitled  to  the  sum 
payable  as  tenants'  damages  (o).  A  demise  of  a  house  and 
garden  described  the  premises  by  boundaries  which  strictly 
would  include  a  portion  of  a  piece  of  ground  at  the  back  and 
adjoining  the  garden,  which  was  laid  out  as  a  common  walk 
for  a  row  of  houses ;  it  was  held,  that  this  portion  of  the 
common  walk  was  included  in  the  premises  demised,  though 
by  the  lease  a  right  was  granted  to  the  lessee  of  the  use  of 
the  whole  of  the  common  walk  (j!?). 

Effect  of  word  "  appurtenances."  —  The  demise  of  a  house 
"  with  the  appurtenances "  will  pass  the  house,  with  the 
orchards,  yards  and  curtilage  and  gardens,  but  not  the  land;i 
esjDecially  if  it  be  at  a  distance,  though  occupied  with  the 
house ;  so  the  demise  of  a  house  "  and  the  appurtenances  " 
will  not  pass  an  adjoining  building  not  accounted  parcel  of 
the  house,  although  held  with  it  for  thirty  years  (9').  So  a 
demise  of  premises  in  Westminster,  late  in  the  occupation  of 
A.  (particularly  describing  them),  part  of  which  was  a  yard, 
was  held  not  to  pass  a  cellar  situate  under  that  yard,  which 
was  then  occupied  by  B.,  another  tenant  of  the  lessor;  for 
though  prima  facie  the  property  in  the  cellar  would  pass  by 
the  demise,  yet  that  might  be  regulated  and  explained  by 
circumstances  (r).  Under  a  demise  of  a  messuage,  with  all 
rooms  and  chambers,  and  the  appurtenances  thereto  belong- 

(0)  Wilson  V.  Anderson,  1  C.  &  K.  {q)  Fryan     v.     Wetherhead,    Cro. 

544.  Car.  17. 

(p)  Curling  v.  Mills,   6   M.    &   G.  (?•)  Doe  d.  Freeland  v.  Burt,  1  T. 

173.  R.  701 ;  Press  v.  Parker,  2  Bing.  456 

1  A  demise  of  a  dwelling-house  will  pass  a  small  lot  of  land  iised  with  it. 
Ammidown  r.  Ball,  8  Allen  (Mass.)  293.  Generally  land  will  not  i)ass  as  ap- 
purtenant to  land.  Oliver  v.  Dickinson,  100  Mass.  114  ;  Ogden  v.  Jennings,  62 
N.  Y.  526. 

A  water  right  will  pass  as  appurtenant  to  a  mill.  Pickering  v.  Stapler,  5  S. 
&  R.  107. 

A  lease  of  part  of  a  building  will  not  pass  by  implication,  other  parts  not 
necessary  to  its  use.  Hill  r.  Sliultz,  40  N.  J.  Eq.  104.  A  way  of  necessity 
will  pass  as  appurtenant  to  land,  but  not  the  soil  over  which  the  way  passes. 
Leonard  v.  White,  7  Mass.  6. 

233 


*142  THE   LEASE.  [Cu.  V.  S.  5. 

ing,  is  to  be  understood  all  that  is  occupied  together  as  an 
entire  messuage  at  one  and  the  same  time ;  therefore,  such 
a  demise  will  not  comprehend  a  room  which  had  once  formed 
part  of  the  messuage,  but  which  had  been  separated  from  it 
by  means  of  a  wooden  partition,  and  had  not  been  occupied 
with  it  for  many  years  previously  to  the  demise  (s).  So  a 
stable  will  not  pass  under  the  renewed  lease  of  a  messuage 
with  the  appurtenances,  which  was  not  originally  demised 
therewith  and  actually  forms  no  part  thereof  (^).  Generally 
speaking,  land  will  not  pass  as  appurtenant  to  a  house,  but 
it  may  sometimes  do  so,  to  effectuate  the  obvious  intention 
of  the  parties  (w).  Land  cannot  be  appurtenant  to  a  mes- 
suage in  the  proper  sense  of  the  word ;  nor  can  one  species 
of  land  be  appurtenant  to  another,  because  the  term  is  only 
properly  applied  to  the  annexation  of  incorporeal  to  corpo- 
real hereditaments,  in  those  cases  in  which  the  law  permits 

such  an  union ;  but  land  may  be  appurtenant  to  a 
[*142]  messuage    in    common  parlance,  as   *  being  usually 

occupied  with  it  (:r).  Whether  the  thing  claimed  as 
appurtenant  be  parcel  or  not  must  be  gathered  from  evi- 
dence :  thus  where  there  is  a  conveyance  in  general  terms 
of  all  that  acre  called  Blackaere,  everything  which  belongs 
to  Blackacre  passes  with  it;  but  whether  parcel  or  not  of 
the  thing  demised  is  always  matter  of  evidence  (//).  Under 
a  lease  of  premises,  "together  with  all  ways  appertaining, 
or  with  any  parts  thereof  used  or  enjoyed,"  a  right  of  way 
was  held  to  pass,  although  not  expressly  mentioned,  upon 
proof  that  it  was  used  with  the  premises  at  the  time  the 
lease  was  granted  (2)  ;  but  where  an  under-lease  described 
the  road  demised  and  the  ways  granted  by  the  words  '•'all 
ways  thereunto  appertaining,"  it  was  held  that  a  right  of 

(s)  Kerslake    v.    White,   2    Stark.  B.,  N.  S.  463.     There  are  cases  both 

G08.  ways,    per  V.  Williams,  J.,  7  C.  B. 

(/)  Maitland  v.  Mackinnin,  1  II.  &  714. 

C.  007  ;  n2  L.  J.,  Ex.  4i».  (x)  Wilmnre    v.    Cain,   Cro.    Kliz. 

('0  Hill    V.  Grange,  Dyer,   1.30   b;  018;   Anon.,    Moor.    221;    Cro.    Eliz. 

rir»w.  170,  S.  C;  Baudeley  v.  Brook,  10. 

Cro.  Jac.  189;  Ilearn  v.  Allen,  Cro.  (//)  Cole  Ejec.  240. 

Car.  07;  Roe  d.  Walker  v.  Walker,  3  {:)  Koopstra  i-.  Lucas,  5  B.  &  A. 

Bos.  &  P.  375;    Buck  d.  Whalley  v.  830;  James  r.  Plant  (in  error),  4  A. 

Nurton,  1   Bos.  &  P.  53;   cited  5  C.  &  E.  749;  cmte,  Ch.  III.,  Sect.  5. 

234 


Ch.  V.  S.  5.]  DESCRIPTION    OF   DEMISED   PIIEMISES.  *142 

way  over  the  original  lessor's  soil  would  not  })ass  hy  these 
words  (a).  A  grant  of  a  close,  "together  with  all  ways, 
easements,  and. appurtenances  thereto  appertaining,  and  with 
the  same  now  or  heretofore  used,  occupied  or  enjoyed,"  will 
not  pass  a  right  of  way  over  an  adjoining  close  used  by  the 
grantor  as  owner  of  both  closes,  no  such  way  having  existed 
before  the  unity  of  possession  became  vested  in  him  (b). 
Generally  speaking,  a  right  of  way  cannot  pass  under  the 
word  "appurtenances"  (c).  But  a  way  of  necessity  may  so 
pass  (t?).^  There  is  a  distinction  betw^een  easements  which 
are  in  their  nature  continuous  and  apparent,  such  as  drains 
&c.,  and  other  easements,  such  as  ordinary  rights  of  way,  or 
the  right  to  use  a  pump  in  adjoining  land  —  the  former  pass 
by  a  devise  or  conveyance  of  the  messuage  without  any 
general  words  ;  but  the  others  must  be  created  by  an  express 
grant  (e).^  According  to  the  current  of  the  most  recent 
decisions  it  would  seem  that  nothing  will  pass   under  the 

(a)  Harding  v.  Wilson,  2  B.  &  C.  Langley  v.  Hammond,  L.  R.,  3  Excii. 

96.  161,  169. 

(6)  Thomson  r.  Waterlow,  L.  R.,  6  (c/)  Pinnington  v.  Gallaiid,  9  Excli. 

Eq.  36;  .37  L.  J.,  Ch.  495;  Langley  1 ;    22    L.  J.,    Ex.    348;    Pheysey    v. 

V.  Hammond,  L.  R.,  3  Ex.  161,  169;  Vicary,  16  M.  &  W.  484  ;  Hinchcliffe 

ante,  Ch.  III.,  Sett.  5.  v.  Earl  of  Kinnoul,  5  Bing.  N.  C.  1 ; 

(c)  Wortliington    v.   Gimson,  2   E.    *  Davies  v.  Sear,  L.  R.,  7  Eq.  427. 
&  E.  618;  29  L.  J.,  Q.  B.  116  ;  Clem-  (e)  Pyer  v.  Carter,  1  H.  &  N.  916; 

ents  V.  Lambert,  1  Taunt.  205; "Plant  Wortliington    v.  Gimson,  2    E.  &  E. 

V.  James,  5  B.  &  Adol.  791;    4  A.  &  618;  29  L.  J.,  Q.  B.  116,  120;  Pear- 

E.  749,  761;  Ackroyd  v.  Smith,  9  C.  son  v.  Spenser,  1  B.  &  S.  571,  583;  3 

B.  689 ;  10  C.  B.  164  ;  Dodd  v.  Bur-  B.  &  S.  761  ;  S.  C,  Polden  v.  Bastard, 

chell,  1  H.  &  C.  113;  121  ;  31  L.  J.,  4  B.  &  S.  258,  263;   32  L.  J.,  Q.  B. 

Ex.  364;  Thomson   v.  Waterlow,  L.  372;  S.  C.  (in  error),  L.  R.,  1  Q.  B. 

R.,  6   Eq.   36 ;    37   L.  J.,   Ch.   495 ;  156 ;  7  B.  &  S.  130 ;  35  L.  J.,  Q.  B. 


1  Leonard  v.  Wliite,  7  Mass.  6. 

2  What  easements  pass  by  implication.  —  Necessary  easements  to 
which  grantor  has  title  will  pass  by  inij)lication.  Examples  :  A  right  to  take 
water  from  a  spring,  HoUenbeck  v.  McDonald,  112  Mass.  247;  a  necessary 
right  of  way,  Kent  ti.  White,  10  Pick.  (Mass.)  138;  Voorhees  v.  Burchard, 
55  N.  Y.  98;  even  tliough  it  be  not  the  only  possible  way,  Pettingill  v.  Porter, 
8  Allen  (Mass.)  1.  A  right  to  use  adjoining  land  may,  Voorhees  i'.  Burchard, 
55  N.  Y.  98,  besides  others  stated  in  text. 

If  a  lessor  orally  lease  certain  premises  agreeing  to  furnish  steam  power 
from  adjoining  or  servient  premises  and  then  convey  the  latter,  the  easement 
is  terminated.  Brewing  v.  Berryman,  2  Pugs.  (N.  B.)  115.  Demises  of  in- 
corporeal hereditaments  must  be  by  deed.     Reed  on  St.  of  Frauds,  sec.  801. 

235 


*143  THE   LEASE.  [Ch.  V.  S.  5. 

word  "  appurtenances  "  which  would  not  equally  pass  by  a 
conveyance  of  the  principal  subject-matter,  without  the  word 
"  appurtenances  "  (/). 


[*143]  *  (b)  "  General  Words "'  wiplied  by  Conveyancing  Act. 

If  the  lease  be  by  deed,  and  bear  date  on  or  after  1st  Jan., 
1882,  certain  "  general  words  "  are  implied  by  virtue  of  that 
act,  by  s.  2,  subs,  (v.),  of  which  "conveyance"  includes  a 
lease  made  by  deed;  for  s.  6  of  that  act  enacts'as  follows:  — 

Lease  of  land.  — "  (1)  A  conveyance  of  land  shall  be 
deemed  to  include  and  shall  by  virtue  of  this  act  operate 
to  convey,  with  the  land,  all  buildings,  erections,  fixtures, 
commons,  hedges,  ditches,  fences,  ways,  waters,  water-courses, 
liberties,  privileges,  easements,  rights,  and  advantages  what- 
soever, appertaining  or  reputed  to  appertain  to  the  land,  or 
any  part  tliereof,  or  at  the  time  of  the  conveyance  demised, 
occupied,  or  enjoyed  with,  or  reputed  or  known  as  part  or 
parcel  of  or  appurtenant  to  the  land  or  any  part  thereof. 

Lease  of  buildings.  —  "  (2)  A  conveyance  of  land,  having 
houses  or  other  buildings  thereon,  sliall  be  deemed  to  include 
and  shall  by  virtue  of  this  act  operate  to  convey,  with  the 
land,  houses,  or  other  buildings,  all  outhouses,  erections, 
fixtures,  cellars,  areas,  courts,  courtyards,  cisterns,  sewers, 
gutters,  drains,  ways,  passages,  lights,  water-courses,  liberties, 
privileges,  easements,  rights  and  advantages  whatsoever, 
appertaining  or  reputed  to  appertain  to  the  land,  houses, 
or  other  buildings  conveyed,  or  any  of  them,  or  any  part 
thereof,  or  at  the  time  of  the  conveyance  demised,  occupied, 
or  enjoyed  with,  or  reputed  or  known  as  part  or  parcel  of  or 
appurtenant  to,  the  land,  houses,  or  other  buildings  conveyed, 
or  any  of  them,  or  any  part  thereof. 

Lease  of  manor.  —  "  (3)  A  conveyance  of  a  manor  shall  be 
deemed  to  include  and  shall  by  virtue  of  this  act  operate 
to  convey,  with  the  manor,  all  pastures,  feedings,  wastes, 
warrens,  commons,  mines,  minerals,  (juarries,  furzes,  trees, 
woods,  underwoods,  coppices,  and  the  ground  and  soil  there- 

(/)  Cases    mpra;    and   sec   Shop.  Touch.  89 ;  0  M.  &  W.  189. 
236 


Ch.  V.  S.  6.]  TERM   GRANTED    (HABENDUM).  *144 

of,  fishings,  fisheries,  fowlings,  courts  leet,  courts  baron,  and 
other  courts,  view  of  frankpledge  and  all  that  to  view  of 
frankpledge  doth  belong,  mills,  mulctures,  customs,  tolls, 
duties,  reliefs,  heriots,  tines,  sums  of  money,  amerciaments, 
waifs,  estrays,  chief  rents,  quit  rents,  rents  charge,  rents 
seek,  rents  of  assize,  fee  farm  rents,  services,  royalties,  juris- 
dictions, franchises,  liberties,  privileges,  easements,  profits, 
advantages,  rights,  emoluments,  and  hereditaments  whatso- 
ever, to  the  manor  appertaining  or  reputed  to  appertain,  or 
at  the  time  of  conveyance  demised,  occupied  or  enjoyed  with 
the  same,  or  reputed  or  known  as  part,  parcel,  or  member 
thereof. 

Application  of  section.  —  "  (4)  This  section  applies  only  if 
and  as  far  as  a  contrary  intention  is  not  expressed  in  the 
conveyance,  and  shall  have  effect  subject  to  the  terms  of 
conveyance  and  to  the  provisions  therein  contained. 

"  (5)  This  section  shall  not  be  construed  as  giving  to  any 
person  a  better  title  to  any  property,  right,  or  thing 
in  this  section  mentioned  *  than  the  title  which  the  [*144] 
conveyance  gives  to  him  to  the  land  or  manor  ex- 
pressed to  be  conveyed,  or  as  conveying  to  him  any  property, 
right,  or  thing  in  this  section  mentioned,  further  or  other- 
wise than  as  the  same  could  have  been  conveyed  to  him  by 
the  conveying  parties. 

"  (6)  This  section  applies  only  to  conveyances  made  after 
the  commencement  of  this  act." 


Sect.  6.  —  Term  granted. 
'   (a)  The  Habendum. 


Office  of  habendum.  —  The  habendum  is  that  part  of  the 
lease  which  begins  with  "  to  have  and  to  hold,"  and  properly 
succeeds  the  premises :  its  office  is  to  limit  with  certainty 
the  estate  :  it  may  also  abridge  or  alter  the  generality  of  the 
premises  (,^)  ;  in  short,  it  fixes  the  quality  and  quantity  of 
the  estate,  and  ascertains  the  meaning  of  the  premises,  but 

(g)  Shep.  Touch.  75 ;    Com.  Dig.  tit.  Fait  (E.  9)  ;   2  Prest.  Conv.  439,  442. 

237 


*145  THE   LEASE.  [Ch.  V.  S.  6. 

cannot  contradict  or  destroy  them  (7«).  Its  operation  as  a 
grant  is  merely  prospective  from  the  time  of  the  execution 
of  the  lease :  the  term  is  then  first  created  (i)  ;  but  the  dura- 
tion of  it  is  to  be  computed  from  the  day  in  that  behalf  men- 
tioned in  the  habendum  (^).  By  indenture  dated  and  made 
on  19th  July,  1851,  A.  demised  to  B.,  to  hold  from  25th 
December,  1849,  for  the  term  of  fourteen  years  thence  next 
ensuing,  determinable  as  therein  mentioned ;  provided,  that 
either  party  might  determine  the  demise  at  the  expiration 
of  the  first  seven  years  thereof  by  six  months'  notice :  held 
that  the  seven  years  were  to  he  reckoned  from  the  25th 
December,  1849,  and  that  the  lease  might  be  determined  on 
25th  December,  1856  (^).  The  word  "term"  in  a  covenant 
in  a  lease  may  signify  either  the  time  or  the  estate  granted  (J). 
Where  a  lease  was  made  on  the  10th  of  October,  habendum 
from  the  20th  day  of  November  (not  saying  in  what  year) 
for  five  years,  the  court  held  that  the  lease  was  void  for 
uncertainty  (m).  But  where  a  lease  was  made  for  years, 
to  begin  at  the  feast  of  our  Lady  JNIary  (without  expressing 
what  feast,  whether  of  the  Annunciation,  Purification,  &c.)» 
the  court  held  the  lease  to  be  good,  and  that  the  lessee  by 

his  entry  might  determine  at  which  of  the  said  feasts 
[*145]   *  the  term  should  begin  (»)•     A  lease  to  one  for  life, 

habendum  to  his  three  sons  successively,  but  omit- 
ting to  mention  the  sons  in  the  ])remises  of  the  deed,  was 
held  to  be  for  the  life  of  the  father  only,  and  that  tlie  sons 
should  not  take  in  possession,  or  by  way  of  remainder ;  for 
it  being  limited  to  the  father  for  his  life,  that  was  a  greater 
estate  than  for  the  lives  of  others ;  and  the  tlu-ee  sons  were 


(h)  riowdon,     ir,3  ;      Cockingf     v.  (k)  Bird  v.  Baker,  1  E.  &  K.  12;  28 

Ileathcoto,  Lofft,  190;    Doe  d.  Tim-  L.  J.,  Q.  B.  7. 

mis  V.  Steele,  4  Q.  B.  003 ;    Bird  i-.  (/)  Evans  v.  Vaiighan,  4   B.  &  C. 

Baker,  1  E.  4  E.  12  ;  28  L.  J.,  Q.   B.  201  ;    Wright   d.    Plowden    v.    Cart- 

7;  Smitli  L.  &  T.  104  (2nd  ed.).  wri^rht,  1  Burr.  282;  1  Ld.  Ken.  520; 

((■)  .Tervis  r.  Toinkiiison,  1  II.  i<l  N.  Green    r.    Eihvards,    Cro.    Eliz.   21(5; 

105,  200;  Siiaw  i-.  Kay,  1    E.xch.  412;  Cottce  r.  Bicliardson,  7  E.xeli.  151  ;  2 

Lewis  V.  Milliard,  1  Sid.  ;574  ;  Wyburd  Blac.  Com.  14.'? ;  Sliep.  Touch.  207. 
1-.  Tuek,  1  B.  &  P.  404;    Dinsdale  r.  (m)  Anon.,  1  Mod.  180. 

Isles,  :3  Keb.  207;  2  Lev.  88.  (")  Anon.,  1  Leon.  227. 

238 


Cii.  V.  S.  0]  TERM   GRANTED    (HABENDUM).  *145 

named  as  persons  to  have  an  estate,  and  not  to  make  a  limi- 
tation of  an  estate  (o). 

Discrepancy  between  habendum  and  reddendum.  —  The 
ordinary  rule  is,  that  where  there  is  a  discrepancy  between 
the  habendum  and  the  reddendum,  the  habendum  must  pre- 
vail (jt>)  ;  but  this  rule  does  not  apply  where  on  the  face  of 
the  lease  the  habendum  is  wrong  {q}. 

(b)  Lease  for  Life  of  the  Lessee. 

Lease  for  life  of  the  lessee.  —  An  estate  for  life  may  be 
created  by  deed,  either  by  express  limitation  or  by  a  grant 
in  general  terms.  Thus  a  grant  by  A.  to  B.  of  the  manor  of 
Dale  gives  to  B.  an  estate  for  his  life  (r).  This,  however, 
would  be  otherwise  if  a  contrary  intention  could  be  collected 
from  the  terms  of  the  deed  (s).  Where  A.  demises  to  B.  for 
the  term  of  his  natural  life,  the  demise  is  prima  facie  for  the 
life  of  B. ;  but  where  A.  demised  to  B.,  his  executors  and 
administrators,  for  the  term  of  his  natural  life,  and  the  lease 
contained  a  covenant  by  A.  for  the  quiet  enjoyment  of  the 
premises  by  B.,  his  executors,  &c.,  during  the  natural  life  of 
A.,  it  was  held  that  the  word  ''  his  "  in  the  demising  clause 
must  be  referred  to  A.,  the  grantor,  and  not  to  B.,  though 
his  name  was  the  last  antecedent  (i). 

Absolute  or  conditional.  —  Estates  for  life  granted  abso- 
lutely will,  generally  speaking,  endure  as  long  as  the  life  for 
which  they  are  granted  (u') :  but  there  are  some  estates  for 
life  which  may  determine  upon  future  contingencies,  before 
the  life  for  which  they  are  granted  expires :  as  where  a  lease 
is  to  a  man  quamdiu  se  bene  gesserit ;  to  a  woman  durante 
viduitate  or  dum  sola ;  to  husband  and  wife  during  cover- 
ture ;  to  A.,  as  long  as  he  inhabits  or  pays  such  rent,  or  till 
he  be  preferred  to  such  a  benefice,  or  till  out  of  the  profits 
he  has  paid   £100   or   other  sum :  —  in  these  and  the  like 

(o)  Windsmore    r.   Hubbard,   Cro.  (s)  Doe  d.  Pritchard  v.  Dodd,  5  B. 

Eliz.  57.  &  Ad.  689;  Co.  Lit.  42  a. 

(p)  Shep.  Touch.  52.  (0  Doe  d.  Pritchard  v.  Dodd,  sit- 

(7)  Burchell  v.  Clark,  L.  R.,  2   C.  pra. 
P.  D.  88 ;  and  see  ante,  p.  120.  (m)  2  Blac.  Com.  121. 

(r)  Co.  Lit.  42  a,  183  a. 

239 


*146  THE  LEASE.  [Ch.  V.  S.  6. 

cases,  the  duration  of  the  estate  depends  merely  upon  the 
condition  (a;).  But  the  estate  is  as  perfect  an  estate  for  life 
until  the  event  take  place,  as  if  it  had  been  granted  abso- 
lutely. A  lease  for  years,  if  the  lessee  so  long  live, 
[*146]  with  a  remainder  to  *  another  for  the  residue  of  the 
term,  must  be  construed  to  give  the  remainder-man 
a  power  to  enjoy  during  all  the  residue  of  the  years  to 
come  («/). 

(c)  Lease  for  Lives. 

Origin  of  the  lease  for  lives.  —  The  lease  for  the  lives  of 
persons  other  than  the  lessee,  or  as  it  is  commonly  called, 
the  "lease  for  lives"  has,  notwithstanding  its  speculative 
character,  been  common  from  very  ancient  times  in  many 
parts  of  England  (z),  chiefly  in  the  west,  or  where  the  land- 
lords have  been  ecclesiastical  corporations.  Such  a  lease 
confers  a  freehold  interest  upon  the  lessee,  whereas  a  lessee 
for  years  has  a  chattel  interest  only  (a),  and  this  is  why  the 
lease  for  lives  has  so  long  continued  in  favour,  continuing, 
by  mere  force  of  habit,  long  after  the  causes  for  its  retention 
have  ceased  to  operate.  It  is,  however,  believed  to  be 
gradually  falling  into  desuetude,  and,  indeed,  the  objections 
to  it  in  modern  times  are  too  obvious  to  dwell  upon. 

Commencement  of  leases  of  lives.  —  A  lease  for  lives,  to 
begin  from  the  day  of  the  date  thereof,  is  good  and  will  not 
be  said  to  convey  a  freehold  to  commence  in  futuro  (/>)  :  so 
a  lease  to  hold  the  lessee  for  his  life,  which  term  shall  begin 
after  the  determination  of  a  previous  term  for  three  lives,  is 
good  (c).     But,  although  the  above  rule  prevails  at  common 

(r)  Co.  Lit.  42  a.  lives  had  the  rifiht  to  reinstatement 

(jl)  Wriglit   d.    I'lowden    v.    Cart-  after  eviction,  whereas  tlie  lessee  for 

Wright,  1  Burr.  282;  1  Ld.  Ken.  529;  years  had  only  a  riglit  to  daniaj^es  ; 

Sliep.  Touch.  272.  (2)  tiiat  tlie  lessee  for  lives  had  tiie 

(c)  The  lease  for  lives  is  also  very  parliamentary  franchise  (not  ohtaiiied 

common  in  Ireland.      iSee   Furlong's  by  the  lessee  for  years  until  1832)  ; 

Landlord  and  Tenant,  bk.  ii.,  ch.  4.  and  (.'})  that  the  lessee  for  lives  had 

{(i)  From  the  lease  for  lives  giving  an  estate  descendible  free  from  debts. 

the    lessee    an    estate    of    freehold,  {!>)  Freeman  d.  Vernon  v.  West,  2 

whereas  the  lessee  for  years  had  no  Wils.  Kif). 

freehold,  but  only  a  chattel  interest,  (r)  rnderhay    v.    Underhay,    Cro. 

it    resulted    (1)    that    the    lessee    for  Kliz.  2'.»(j. 

240 


Cu.  Y.  S.  6.]  TKllM   CHANTED    (HABENDUM).  *147 

law  as  to  leases  in  future,  a  very  different  rule  of  law  pre- 
vails iu  cases  of  limitations  taking  effect  under  the  Statute 
of  Uses,  or  as  devises  or  trusts  (c?).  Ami  now,  by  8  &  9 
Vict.  c.  106,  s.  2,  "  all  corporeal  tenements  and  hereditaments 
shall,  as  regards  the  conveyance  of  the  immediate  freehold 
thereof,  be  deemed  to  lie  in  grant  as  well  as  in  livery." 

Construction  of  the  grant  for  lives.  —  The  grant  of  a  lease 
for  several  lives  of  which  one  is  not  in  existence  at  the  date 
of  the  grant  is  good  only  for  the  lives  which  are  in  existence 
at  such  date  (g). 

It  was  held  by  a  Court  of  Appeal,  in  Coates  v.  Collins  (/), 
that  a  covenant  in  a  lease  for  lives,  that  the  lease  is  good  for 
the  lives  for  which  it  is  granted,  does  not  warrant 
the  subsistence  of  the  lives.  *  Therefore,  where  the  [*147] 
defendant  assigned  a  lease  for  the  lives  of  W.,  J.,  and 
H.,  and  the  survivors  and  survivor  of  them,  and  covenanted 
that  the  lease  was  "  a  good  and  valid  lease  "  for  such  lives, 
and  was  "  not  forfeited,  surrendered,  or  become  void  or  void- 
able," and  J.  had  died  before  the  making  of  the  assignment, 
the  plaintiff  failed  to  recover  as  for  a  breach  of  covenant. 

Dissolution  on  death  of  lessee.  —  At  common  law  a  lease 
for  lives  to  the  lessee  only  without  naming  a  successor, 
entitled  any  person  whatever,  upon  the  death  of  the  lessee,  to 
enter  upon  the  demised  premises,  as  "  general  occupant,"  and 
to  continue  in  possession  till  the  last  of  the  lives  dropped  (7i), 
but  such  a  lease  to  the  lessee,  his  heirs  and  assigns,  enti- 
tled the  heir  to  enter  as  "  special  occupant,"  and  perhai)s 
also  the  executor  (/).  The  12th  section  of  the  Statute  of 
Frauds  made  the  estate  pur  autre  vie  devisable  by  will,  and 
provided  that  it  should  be  chargeable  as  assets  either  in  the 
hands  of  the  heir  or  executor,  if  no  devise  should  be  made. 
The  present  law  is  contained  in  s.  6  of  the  Wills  Act,  1  Vict. 

(d)  Rivis  V.  Watson,  5  M.  &  W.  Exchequer  Chamber  was  nnanimoiis, 
255;  Gilbertson  v.  Eichards,  4  H.  &  both  on  principle  and  on  tlie  author- 
N.  277;  5  Id.  453.  ity  of  Basket  v.  Scot,  Koll.  Abr.  vol. 

(e)  Doe  d.  Pemberton  v.  Edwards,  ii.  p.  249. 

1  M.  &  W.  553.  (/;)  Co.  Litt.  41  b. 

(/)  L.  R.,  7  Q.  B.  144;  41  L.  J.,  (i)  See  Piatt  on  Leases,  vol.  i.  p. 

Q.  B.  90;  26  L.  T.  134.     Lush,  J.,  689,  and  the  cases  there  cited, 
dissented  iu  the  court  below.      The 

241 


*148  THE   LEASE.  [Ch.  V.  S.  6. 

c.  26,  wliicli,  after  giving  an  absolute  disposing  power  by 
will  and  repealing  s.  12  of  the  Statute  of  Frauds,  provides 
that : 

"  If  no  disposition  by  will  shall  be  made  of  any  estate  pur 
autre  vie  of  a  freehold  nature  the  same  shall  be  chargeable 
in  the  hands  of  the  heir,  if  it  shall  come  to  him  by  reason  of 
special  occupancy,  as  assets  by  descent,  as  in  the  case  of 
freehold  land  in  fee-simple ;  and  in  case  there  shall  be  no 
special  occupant  of  any  estate  pur  autre  vie,  whether  free- 
hold or  customary  freehold,  tenant  right,  customary  or  copy- 
hold, or  of  any  other  tenure,  and  wdiether  a  corporeal  or 
incorporeal  hereditament,  it  shall  go  to  the  executor  or 
administrator  of  the  party  that  had  the  estate  thereof  by 
virtue  of  the  grant ;  and  if  the  same  shall  come  to  the  exec- 
utor or  administrator  either  by  reason  of  a  special  occupancy 
or  by  A'irtue  of  this  act,  it  shall  be  assets  in  his  hands,  and 
shall  go  and  be  applied  and  distributed  in  the  same  manner 
as  the  personal  estate  of  the  testator  or  intestate." 

Proof  of  death  of  cestui  que  vie.  —  It  is  of  the  essence  of 
the  estate  pur  autre  vie  that  one  of  tlie  lives  should  be  in 
existence,  and  at  common  law  the  burden  of  proof  of  death 
lay  upon  the  party  seeking  to  take  advantage  of  it,  who 
would  in  all  ordinary  cases,  unless  the  covenants  should  be 
very  onerous,  be  the  reversioner. 

Presumption  of  death  after  7  years.' — To  renuHly  tliis  incon- 
venience the  statute  19  Car.  2,  c.  6,  was  passed,  wliich  shifted 
the  burden  of  proof  in  many  cases  by  the  enactment  that  if 
persons  for  whose  lives  estates  have  been  granted  shall  remain 
beyond  the  seas,  or  elsewhere  absent  themselves  in  this 
realm  by  the  space  of  seven  years  together,  and  no  sufficient 
and  evident  proof  be  made  of  the  lives  of  such  persons,  in 
any  action  for  the  recovery  of  the  tenements,  "the 
[*148]  persons  upon  whose  *  lives  the  estate  depended  shall 
be  accounted  as  naturally  dead,  and  the  judges  before 
whom  such  action  sliuU  Ik;  l)r()ught  sliall  direct  the  jury  to 
give  their  verdict  as  if  the  person  so  remaining  beyond  the 
seas,  or  otherwise  absenting  himself,  were  dead."  The  3rd 
section  of  the  same  act  allows  tlu;  plaintiff  in  any  snch  action 
to  challenge  any  juror  tlu;  griiatesL  part  of  whose  real  estate 

"  242 


Ch.  V.  S.  G]  TERM   GRANTED    (HABENDUM).  *148 

is  held  by  lease  or  copy  for  lives,  and  the  4th  section  pro- 
vides for  the  rtnnstatenient,  with  damages  against  the  lessor 
for  mesne  profits,  of  any  lessee  evicted  by  virtue  of  the  act 
who  shall  afterwards  be  able  to  prove  that  the  cestui  que  vie, 
whose  death  was  presumed,  was  in  fact  alive. 

There  is  no  legal  j)resumption  as  to  the  time  of  the  death 
of  a  cestui  que  vie  (^)  ;  the  fact  of  his  having  been  alive  or 
dead  at  any  time  during  the  seven  years  must  be  proved  by 
the  party  relying  on  it  (/),  and  it  will  be  seen  from  6  Ann. 
c.  18,  s.  5,  which  will  be  presently  referred  to,  that  the  lessor 
can  recover  mesne  profits  from  a  lessee  holding  over  after 
the  dropping  of  the  last  life.  Where  a  lease  for  lives  con- 
tained a  covenant  that  the  lessee  would  produce  a  cestui  que 
vie,  or  make  it  appear,  if  he  should  be  abroad,  that  he  was 
livino-  it  was  held  that  it  was  not  enousfh  for  the  lessee  to 
depose  to  circumstances  from  which  one  jury  might  infer 
that  the  cestui  que  vie  was  living,  and  another  not  (wt). 

Production  of  cestui  que  vie.  —  A  further  and  very  stringent 
act  in  favour  of  lessors,  but  chiefly  applicable  only  in  the  case 
of  fraud,  was  passed  in  the  reign  of  Queen  Anne.  This  was 
6  Ann.  c.  18,  whereby  a  lessor  for  lives  upon  affidavit  made 
that  he  has  cause  to  believe  that  the  cestui  que  vie  is  dead, 
and  that  his  death  is  concealed  by  any  person,  may,  once  a 
year,  move  the  High  Court  for  an  order  upon  the  person 
concealing  the  death  to  produce  the  cestui  que  vie  to  one 
or  two  persons  named  in  the  order.  Upon  a  failure  to  obey 
such  order,  the  court  is  "authorized  and  required"  (n)  to 
make  a  further  order  for  the  production  of  the  cestui  que 
vie  before  the  court  itself  or  before  Commissioners  to  be 
appointed  by  the  court  (two  of  them  upon  the  nomination 
of  the  party  prosecuting  the  order)  (o).  Upon  failure  to 
comply  with  such  further  order,  the  cestui  que  vie  is  to  be 

(Ic)  Nepean  v.  Doe,  2  M.  &  W.  894  but  is  bound  to  make  this  order.    See 

(in  error)  ;  5  B.  &  Ad.  86.  re  Isaac,  4  M.  &  C.  11. 

(/)  lb.  Holiiiaii  V.  Exton,  Prec.  Ch.  (o)  For  instances  of   orders  made 

246.  under  this  act,  see  re  Lingen,  12  Sim. 

(m)  Randle    v.  Long,  6  Ad.  &  E.  194  ;    re  Glossy,  2   Sni.  &   G.  46  ;    re 

218.  Dennis,  8  W.  E.  649;  7  Jur.,  N.  S. 

(n)  The   court   has   no    discretion,  230 ;  re  St.  Jolm's  Hospital,  18  L.  T. 

12  ;  16  W.  R.  556. 

243 


*149  THE  LEASE.  [Ch.  V.  S.  6. 

taken  to  be  dead,  and  the  lessor  is  empowered  to  enter  upon 
the  demised  premises.  By  s.  2  of  the  act,  on  affidavit  that 
the  cestui  que  vie  "is  or  lately  was  at  some  certain  place 
beyond  the  seas,"  the  party  jjrosecuting  the  order  may  send 
over  persons  to  procure  a  personal  view  of  him,  and  if  such 
view  cannot  be  had,  to  make  a  return  to  the  Court  to 
[*149]  that  effect,  whereupon  the  lessor  *  may  enter  as  if 
he  were  dead ;  by  s.  3  the  lessee  for  lives  may  re-enter 
if  after  order  made  it  should  turn  out  that  the  cestui  que 
vie  was  in  fact  alive,  and  b}'  s.  4  if  the  lessee  for  lives  prove 
that  he  has  used  all  endeavours  to  produce  the  cestui  que 
vie,  and  also  that  such  cestui  que  vie  is  in  fact  alive,  he  may 
continue  in  possession. 

Lessee  for  lives  holding  over  a  trespasser.  —  The  fifth  sec- 
tion is  a  very  important  one,  inasmuch  as  it  constitutes  a 
trespasser  any  lessee  for  lives  holding  over  after  the  deter- 
mination of  the  last  life,  whetlker  he  knew  of  such  determina- 
tion or  not.     The  section  is  as  follows :  — 

"  Every  person  who,  as  guardian  or  trustee  for  an}'  infant, 
and  every  husbarid  seised  in  right  of  his  wife  only,  and  every 
other  person  having  any  estate  determinable  upon  any  life  or 
lives,  who  after  the  determination  of  such  particular  estates 
or  interests,  without  the  express  consent  of  him,  her,  or  them, 
who  are  or  shall  be  next  and  immediately  entitled  upon  and 
after  the  determination  of  such  particular  estates  or  interests, 
shall  hold  over  and  continue  in  possession  of  any  manors, 
messuages,  lands,  tenements,  or  hereditaments,  shall  be  and 
are  hereby  adjudged  to  be  trespassers,  and  eveiy  person  or 
persons,  his,  her,  and  their  executors  or  administrators,  who 
are  or  sliall  be  entitled  to  any  sucli  manors,  messuages,  lands, 
tenements,  and  hereditaments,  upon  or  after  the  determina- 
tion of  such  particular  estates  or  interests,  shall  and  may 
recover  in  damages  against  every  such  person  or  persons  so 
holding  over  as  aforcsuid,  and  against  his,  her,  or  their  exec- 
utors or  administrators  tlu"  full  value  of  tlic  jtrolits  received 
(luring  such  wrongful  possession  iis  aforesaid." 

Renewal.  —  Leases  for  lives  freciuently  contain  a  covenant 
for  renewal.  Tlie  effect  of  such  covenants  is  considere<l 
hereaftcu- rCli.  IX.). 

244 


Ch.  V.  S.  C]        TERM   GRANTED    (COMMENCEMENT).  *150 


(c)  Commencement  of  Terms  for   Years. 

Certainty  in  commencement.  —  As  a  lease  for  years  is  a  mere 
chattel,  it  ma}^  be  made  to  commence  either  presently  or  at 
a  future  period,  at  a  date  to  come,  as  at  Michaelmas  next,  or 
at  three  or  ten  years  after,  or  after  the  death  of  the  lessor,  or 
of  J.  S.  (p).^  A  lease  to  commence  upon  the  expiration  of  a 
previous  lease  conveys  only  an  interesse  termini  until  the 
expiration  of  the  previous  lease,  and  does  not  amount  to  an 
assignment  of  the  reversion  expectant  on  such  lease  (^q). 
After  the  day  appointed  for  the  commencement  of  the  term, 
an  interesse  termini  is  sufficient  to  support  an  entry  or  eject- 
ment (r).  All  leases  for  years,  whether  they  begin  in  prse- 
senti  or  in  futuro,  must  be  certain :  that  is,  they  must  have 
a  certain  beginning  and  a  certain  ending,  and  so  the 
continuance  of  *  the  term  must  be  certain :  other-  [*150] 
wise  they  are  not  good  (s).  Unless  the  time  of  the 
commencement  of  the  lease  be  stated  it  cannot  be  known 
when  the  rent  is  to  become  due  or  when  the  landlord  is 
entitled  to  distrain  for  it.^  But  though  the  commence- 
ment of  a  term  must  be  fixed  with  certainty,  it  will  be  suf- 
ficient if  it  be  so  fixed  when  the  lease  is  to  take  effect 
in  interest  or  possession  ;  for  until  that  time  it  may  depend 
upon  an  uncertainty,  viz.,  either  a  possible  contingency, 
which   is    to    precede    the   interest   or   possession,   or   upon 

( /))  Shep.  Touch.  273.  N.  S.  96,  103,  105 ;  L.  R.,  1  C.  P.  441 ; 

((/)  Smith  V.  Day,  2  M.  &  W.  684 ;       34  L.  J.,  C.  V.  201;  35  Id.  141. 
Blatchford,  app.,  Cole,  resp.,  5  C.  B.,  (r)  Cole  Ejec.  72,  287,  459. 

N.  S.  514;  Lock  v.  Furze,  19  C.  B.,  (s)  2  Blac.  Com.  144  j  Shep.  Touch. 

267,  272. 

1  Commencement  of  term.  —  A  lease,  like  a  deed,  Jackson  v.  Phipps,  12 

Johns.  (N.  Y.)  418;  Jackson  v.  Dunlap,  1  Johns.  Cas.  (N.  Y.)  114,  takes 
effect  upon  delivery  and  acceptance.  Witthaus  v.  Starin,  12  Daly  (N.  Y. 
Super.  Ct.)  226. 

If  the  term  commence  In  futuro,  yet  the  interest  vests  presently.  Whitney 
V.  Allaire,  1  N.  Y.  305.  If  lessor  meantime  let  premises  to  third  party,  lessee, 
when  time  arrives,  can  eject  him  or  sue  lessor  for  damages.  Trull  v.  Granger, 
8N.  Y.  115. 

The  date  of  the  loftse  is  primCi  fane,  but  not  conclusive  evidence  of  the 
time  of  delivery.     Meagher  v.  Coleman,  1  Russ.  &  Geld.  (N.  S.)  271. 

'■^  The  time  of  commencement  of  a  tenancy  may  be  impliedly  fixed,  without 
any  date  being  stated.     Billings  v.  Canney,  57  Mich.  425. 

245 


*150  THE  LEASE.  [Cn.  V.  S.  6. 

a  limitation  or  condition  subsequent ;  but  where  it  is  to  be 
reduced  to  a  certainty  upon  a  precedent  contingency,  such 
contingency  must  happen  in  the  lives  of  the  parties  (t^. 

Commencement  after  prior  lease.  —  A  lease  to  commence 
after  the  determination  of  a  prior  lease  begins  at  once,  if  the 
previous  lease  be  void  at  law  :  so  a  lease  intended  to  com- 
mence in  future,  which  misrecites  the  prior  lease  on  which  it 
depends  in  a  material  point,  begins  immediately  Qu).  But  if 
the  new  lease  had  misrecited  a  lease  to  A.,  and  had  then 
been  made  for  twenty-one  years,  to  commence  after  the 
expiration  of  the  term  of  A.,  the  misrecital  would  be  unim- 
portant, and  the  new  lease  would  begin  from  the  determina- 
tion of  A.'s  term  (.r). 

Lease  commences  from  date  ordinarily.  —  If  no  date  is  fixed 
for  the  commencement  of  the  tenancy,  it  is  usually  taken  to 
commence  at  the  date  of  the  lease. ^  This,  however,  may  be 
negatived  by  internal  evidence,  as  where  a  lease  dated  on  the 
20th  of  December  was  held,  from  the  fact  that  the  first  pay- 
ment of  a  quarterly  rent  was  to  be  on  the  25th  of  March,  to 
commence  on  25th  of  December  (?/).  The  words  "  from  the 
day  of  the  date  "  mean  either  inclusive  or  exclusive,  according 
to  the  context  and  subject-matter ;  and  the  court  will  con- 
strue them  so  as  to  effectuate  the  intention  of  the  par- 
ties C^)-'^     Generally  speaking,  a  lease  from  the  25th  March 

(0  Slicp.  Touch.  272,  27.",;  Doe  d.  C.  P.  377  ;  44  L.  J.,  C.  T.  216 ;  32  L. 

Hall  V.  IJichanlson,  3  T.  R.  462.  T.  30!t ;  23  W.  R.  473. 

(h)  Co.  Lit.  46  b.  (z)  Pugh  v.  Duke  of  Leeds,  Cowp. 

(.r)  Foote  V.  Berkeley,  1  Lev.  235 ;  714 ;  Ackland   v.   Lutley,  9  A.   &  E. 

Woodhouse's  case,  Dyer,  1)3  b.  870;    Bac.    Abr.   tit.   Leases    (L.   1); 

(if)  Sandiil  v.  Franklin,  L.  R.,  10  Sniitii  L.  &  T.  104,  105  (2nd  ed.). 

^  Day  of  date ;  indivisible.  —  In  computing  time  from  the  date  of  the 
lease,  the  day  of  tlie  dati'  is  ordinarily  t»  be  regarded  as  indivisible. 

"The  day  on  whi(di  the  event  hai)i)ened  may  l)e  regarded  as  an  entirety,  or 
a  point  of  time,  and  so  be  excluded  from  the  coiniintation,"  per  Bronson,  Cli. 
J.,  in  Cornell  r.  Moulton,  3  Denio,  12,  l(i ;  and  Wihle,  J.,  in  Bigelow  v.  Will- 
son,  1  Pick.  (Mass.)  48.^),  V.)\. 

-  "From  the  day  of  the  date."  —  Generally  in  America,  these  words  are 
exclusive  of  the  date.  For  example  :  A  lease  from  first  daj' of  July  begins 
July  2nd,  1  Washb.  on  Real  Prop.  sec.  202,  Atkiws  v.  Sleeper,  7  Allen 
(M:iss.)  487;  or  from  April  Ist  commences  Aprd  2nd,  Thornton  v.  Payne, 
5  Johns.  (N.  Y.)  74.  There  may  be  a  local  custom  varying  it,  as  for  instance, 
the  custom  in  Albany  that  a  lease  from  May  1st  shall  connncncc  at  noon  May 

24G 


Cii.  V.  S.  C]  TERM   GKANTED    (COMMENCEMENT).  *151 

commences  the  next  day  and  ends  on  25tli  March,  otherwise 
the  day  on  which  the  last  quarter's  rent  is  usually  reserved 
would  be  subsequent  to  the  expiration  of  the  lease  (rt).  A 
lease  "  from  the  day  of  the  date,"  and  "  from  henceforth,"  is 
the  same  thing  (J).  Sometimes  a  lease  "from  the  day  of  the 
date  "  will  be  construed  to  mean  "  from  the  day  of  the  exe- 
cution of  the  deed"  (c),  but  the  more  literal  construction  is 
usually  adopted  (cZ). 

*  Impossible  or  uncertain  date.  —  As  to  an  impossi-  [*151] 
ble  or  uncertain  date,  there  appears  to  have  been  this 
distinction  taken  in  the  books,  viz.  that  if  a  lease  be  made  to 
begin  from  an  impossible  date,  as  from  the  30th  of  Febru- 
ary, or  the  like,  it  takes  effect  from  the  delivery  (e).  So  if 
the  lease  be  dated  and  is  to  commence  from  the  "  making 
thereof,"  or  "  from  henceforth  "  (g),  or  from  the  executing 
of  a  former  lease,  and  no  such  lease  in  fact  exist,  or  if  the 

(«)  Ackland  r.  TuxMey,  supra ;  Wil-  4  B.  &  C.  272;  Styles  v.  Wardle,  Id. 

kinson  v.  Gaston,  9  Q.  B.  137.  908;  Cooper  v.  Robinson,  10  M.  &  W. 

(6)  Llewellyn     v.     Williams,    Cro.  (394  ;  Doe  d.  Darlinsiton  v.  Ulpli,  l-'> 

Jac.  258;  Clayton's  case,  5  Rep.  1.  Q.  B.  204  ;  Bird  v.  Baker,  1  E.  &  E. 

(c.)  Underwood  v.  Horwood,  10  Ves.  12. 
209.  (e)  Co.  Lit.  40  b. ;   Styles  v.  War- 

(d)  Shep.  Touch.  108 ;  Doe  d.  Cox  die,  4  B.  &  C.  908. 
V.  Day,  10  East,  427  ;  Steele  v.  Mart, 

1st,  Wilcox  V.  W^ood,  9  Wend.  .340,  348,  350;  but  the  general  rule  in  New 
York,  as  elsewhere,  excludes  the  terminus  a  quo  (per  Savage,  Cli.  J.). 

This  rule  has  been  generally  adopted  in  America  whenever  time  is  to  be 
computed  from  the  happening  of  any  event.  Cornell  v.  Moulton,  3  Denio 
(N.  Y.)  12,  16  {per  Bronson,  Ch.  J.);  Sims  v.  Hampton,  1  S.  &  R.  (Pa.)  411 ; 
Windsor  v.  China,  4  Greenl.  (Me.)  298;  Pease  v.  Norton,  6  Id.  229,  233; 
Brown  v.  Maine  Bank,  11  Mass.  153  ;  Snyder  v.  Warren,  2  Cow.  (N.  Y.)  518, 
7s.r  parte  Dean,  2  Id.  005  ;  Honian  i\  Liswell,  0  Id.  059 ;  Sheets  v.  Selden's  Les- 
see, 2  Wall.  177,  190;  Henry  v.  Jones,  8  Mass.  453,  455  (promissory  note); 
Avery  v.  Stewart,  2  Conn.  09  (promissory  note)  ;  Rand  v.  Rand,  4  N.  H.  207 ; 
Bigelow  V.  Willson,  1  Pick.  (Mass.)  485,  489;  State  v.  Jackson,  4  N.  J.  L.  323 
(time  after  act)  ;  Pyle  v.  Maulding,  7  J.  J.  Marsh.  (Ky.)  202  ;  Williamson  v. 
Farrow,  1  Bailey  (S.  C.  Ct.  of  App.)  GU  ;  contra,  Priest  v.  Tarlton,  3  N.  H. 
93;  Wheeler  v.  Bent,  4  Pick.  (Mass.)  107. 

In  Presbrey  v.  Williams,  15  Mass.  193,  it  was  held  that  the  Statute  of 
Limitations  bars  suit  brought  Nov.  1,  1817,  on  new  promise  made  Nov.  1,  1811, 
but  this  was  disapproved  of  by  Bronson,  C.  J.,  in  Cornell  v.  Moulton,  9  Wend. 
(N.  Y.)  12,  15,  10. 

In  People  v.  Robertson,  .39  Barb.  (N.  Y.  Supreme  Ct.)  9,  it  was  held  that  a 
lease  to  first  day  of  May  would  expire  at  midnight  April  30th,  but  a  lease  to 
end  May  1st  would  expire  at  noon  that  day. 

247' 


*151  THE   LEASE.  [Ch.  V.  S.  6. 

prior  lease  be  void  in  law  (/) ;  but  where  the  limitation  is 
uncertain,  as  a  lease  made  the  10th  day  of  October,  to  hold 
from  the  20th  day  of  November,  without  saying-  what  No- 
vember is  meant,  the  lease  is  thereby  vitiated,  because  the 
limitation  is  part  of  the  agreement  and  the  court  cannot 
determine  it,  not  knowing  the  terms  of  the  contract  (</). 
Where  a  deed  has  no  date,  or  an  impossible  date,  as  the  30th 
of  February,  and  in  the  deed  reference  is  made  to  the  date, 
that  word  must  be  construed  "  deliver}^ ; "  but  if  it  have  a 
sensible  date,  the  Avord  date  occurring  in  other  parts  of  the 
deed  means  the  day  of  the  date  and  not  of  the  delivery; 
and,  therefore,  in  covenant  on  an  indenture  of  lease  dated 
the  24th  day  of  December,  1822,  whereby  the  defendant 
agreed,  within  twenty-four  calendar  months  then  next  after 
the  date  of  the  indenture,  to  procure  a  certain  thing  to  be 
done :  it  was  held,  that  the  deed  took  effect  from  the  day  of 
the  date,  and  that  the  twenty-four  calendar  months  reckoned 
from  the  date  (/<)•  Where  an  ease  was  dated  25th  March, 
1783,  habendum  "from  the  13th  March  now  last  past,'"  and 
it  was  proved  that  the  deed  was  not  executed  until  some 
time  after  the  date,  it  was  held,  that  the  term  commenced 
on  the  25th  March,  1783,  and  not  in  1782  (i).  A  deed 
having  been  made  in  the  month  of  August  in  a  leap  j^ear, 
the  words  "the  29th  February  then  next  ensuing"  were 
construed  to  mean  the  29th  February  in  the  next  leap 
year  (/c).  A  lease  operates  as  a  grant  only  from  the  time 
of  its  execution,  and  the  tenant  is  not  liable  for  previous 
breaches  of  covenant,  although  committed  after  the  date  of 
the  deed  (I).  But  the  duration  of  tlie  term  is  to  be  com- 
puted from  the  day  in  that  behalf  mentioned  in  the  lease  (?n). 
Commencement  vrith  reference  to  entry.  —  In  general  a  let- 
ting by  parol  will  be  considered  to  commence  from  the  day 
of  the  tenant's  entering,  and  not  with  reference  to  any  par- 

(/)  Miller    v.    Maynwarinp,    Cro.  (Z)  Ciiapman  v.  Bcccham,  3  Q.  B. 

Car.  ;5!»7  ;  Bassett  v.  Lewis,  1  Lev.  77.  723. 

(f/)  Bac.  Abr.  tit.  Leases    (L.   1);  (/)  Shaw  v.  Kay,  1  Exch.412;  Jcr- 

Ation.,  1  Mod.  180;  foote  v.  Berkley,  vis  r.  Tomijkinson,  1  H.  &  N.  10;').  20(5. 

1  Sid.  4(iL  (tn)  Bird  v.   Baker,  1   E.  &  E.  12 ; 

(/-)  Styles  V.  Wardle,  4  B.  &  C.  008.  28  L.  J.,  Q.  B.  7. 

(i)  Steele  v.  Mart,  4  B.  &  C.  272. 

248 


Ca.  V.  S.  C]  TERM   GRANTED    (COMMENCEMENT).  *152 

ticular  quarter  day  (»-).  But  where  a  tenant  entered  in  the 
middle  of  a  quarter,  and  afterwards  paid  for  that  time  to  the 
heginning  of  a  succeeding  reguhxr  quarter,  from  which  time 
}ie  paid  half-yearly,  his  tenancy  was  held  to  com- 
mence from  the  quarter  succeeding  his  *  entering  (o).  [*152] 
Where,  however,  the  tenant  entered  in  the  middle  of 
a  quarter,  upon  an  agreement  to  pay  rent  "  quarterly  and 
for  the  half-quarter,"  the  jury,  under  the  judge's  direction, 
found  that  the  tenancy  commenced  from  the  quarter  day 
preceding  the  entry  (p).  A  party  having  taken  possession 
on  the  1st  of  August,  and  at  the  Michaelmas  following  paid 
the  half-quarter's  rent,  and  continued  afterwards  to  pay 
quarterly  on  the  usual  feast  days,  it  was  held,  that  a  notice 
to  quit  at  Michaelmas  was  sufficient ;  and  that  although  the 
landlord  had  at  first  given  notice  expiring  with  the  half- 
quarter,  it  was  not  necessarily  to  be  inferred  from  that  cir- 
cumstance that  the  tenancy  from  year  to  year  commenced 
on  that  day  (^).  Where  a  tenant  under  a  lease  continued 
to  hold  after  the  expiration  of  it  as  a  tenant  at  will,  and 
assigned  it  to  another,  the  tenancy  of  the  assignee  was  held 
to  commence  at  the  day  on  which  the  original  tenancy  com- 
menced under  the  lease,  notwithstanding  the  assignee  came 
in  on  a  different  day  (r). 

Different  computations.  —  A  lease  may  commence  at  one 
day  in  point  of  computation,  and  at  another  in  point  of 
interest  (s),  and  it  may  commence  from  a  day  that  is  past; 
therefore,  a  lease  "to  hold  from  a  day  past  for  fifty  years 
then  next  ensuing,  the  said  term  to  commence  and  begin 
immediately  after  the  determination  of  an  existing  lease  in 
the  same  premises,"  was  not  esteemed  uncertain  as  to  its 
commencement  (^). 

Leases  commencing  on  happening  of  contingencies.  —  If  when 

(n)  Kemp  v.  Derret,  3  Camp.  510.  (;)  Doe  d.  C.astleton  v.  Samuel,  5 

(o)  Doe  d.  Holcomb  v.  Johnson,  6  Esp.  173. 
Esp.  10.  (s)  Smith  L.  &  T.  106  (2nd  ed.). 

(p)  Doe    d.  Wadmore   i\  Selwyn,  (<)  Enys   v.  Donnithorne,  2    Burr. 

Hil.  T.  1807;  Adams  Ejee.  107   ('4th  1190;  Moore  v.  Musgrove,  Hob.  18; 

ed.).  2  Roll.  Abr.  850. 

(7)  Doe  d.  Savage  v.  Stapleton,  3 
C.  &  P.  275. 

249 


*153  THE   LEASE.  [Ch.  V.  S.  6. 

the  lease  is  to  take  effect  in  interest  or  possession  the  years 
be  certain,  it  is  sufficient,  for  until  that  time  it  may  depend 
upon  an  uncertainty ;  either  upon  a  possible  contingency 
precedent  to  its  beginning  in  possession  or  interest,  or  upon 
a  limitation  or  condition  subsequent ;  but  if  it  is  to  be  re- 
duced to  a  certainty  upon  a  contingency  precedent,  the  con- 
tingency must  have  happened  in  the  lives  of  the  parties  (i/). 
Reference  to  certainty  may  cure  uncertainty.  —  Though 
there  appear  no  certainty  of  years  in  the  lease,  yet  if  by 
reference  to  a  certainty  it  may  be  made  certain,  it  is  suffi- 
cient (a;).  Thus  if  a  lease  be  granted  for  years  after  lives  in 
being,  though  it  is  uncertain  at  first  when  that  term  will 
commence,  because  those  lives  are  in  being,  yet  when  they 
die  it  is  reduced  to  a  certainty,  and  that  is  certain  which  can 
be  rendered  so  (?/).  So  a  lease  may  be  granted  for  a  term 
of  years  to  commence  at  the  determination  of  a  previous 
term  for  years  which  is  still  subsisting  (2;).  Ii  the 
[*153]  lease  be  made  to  *  commence  from  the  end  and  expi- 
ration of  the  previous  term,  then,  if  the  prcA^ious 
term  be  surrendered  or  forfeited,  &c.,  the  second  term  com- 
mences immediately ;  but  if  made  to  commence  after  the  end 
and  expiration  of  the  twenty-one  years  aforesaid,  then  the 
second  term  would  not  commence  until  after  the  expiration 
of  the  twenty-one  years  (a).  Where  a  lessor  let  Whiteacre 
to  A.  for  twenty  years,  and  Blackacre  to  B.  for  forty  years, 
and  then  demised  both  to  C.  for  a  term  of  years,  habendum 
from  the  end  or  determination  of  the  said  several  demises  to 
A.  and  P>.,  it  was  held,  that  as  to  Whiteacre  the  term  granted 
to  C.  commenced  immediately  ui)on  the  expiration  of  that 
granted  to  A.,  and  was  not  to  be  deferred  until  tlie  expira- 
tion of  the  demise  to  B.  (i).     Where  a  lease  is  thus  made  to 

(»)  Shop.  Toucli.  272.  100;  Smith  r.  Day,  2  M.  &  W.  G84  ; 

(x)  Id.  Blatiliford,  app.,  Cole,  rcsp.,  5  C.  B., 

((/)  Goodright  v.  Richardson,  3  T.  N.  S.  514;  Doe  d.  Agar  v.  Brown,  2 

It.  403;  Bac.  Abr.  tit.  Leases  (K.)  ;  E.  &  B.  331. 

Bro.  Abr.  tit.  Leases,  71;  Clarke  v.  (a)  Co.    Lit.    45   b;    Wrotesley    ?). 

Sydenham,  Yelve.  85;  S.  C,  1  Brownl.  Adams,  Dyer,  177,  pi.  35 ;   Plowd.  198. 

&  G.  130.  (/')  Windhani's   case,  5   Co.    R.  7, 

(?)  1  Roll.  Abr.  849;  Dyer,  201  b,  Moor.   191;    Cro,  Eliz.  109;  2  Leon, 

pi.   28;    Lord  Paget's  case,  1    Leon.  Kl'i. 

250 


Ch.  V.  S.6.]  TERM   GRANTP:D    (DURATION).  *154 

A.,  reciting  a  former  one  to  B.,  and  demising  for  a  term  of 
years  to  commence  at  the  determination  of  B.'s  lease,  if  in 
fact  no  such  lease  had  been  made  to  B.,  then  A.'s  term  will 
commence  at  once  (c)  ;  and  the  same  if  the  lease  be  void  (f?). 
But  if  there  be  such  a  former  lease,  and  it  be  misrecited  in 
a  material  part  in  the  second,  then  the  new  lease  can  com- 
mence presently  only  in  the  enumeration  of  years,  but  not 
in  interest  until  the  expiration  of  the  first  lease  (e).  If  A. 
seised  of  lands  in  fee  grant  to  B.  that,  when  B.  shall  pay  to 
A.  twenty  shillings,  fi-om  thenceforth  he  shall  hold  the  lands 
for  twenty-one  years,  and  afterwards  B.  pay  the  twenty  shil- 
lings :  in  this  case  B.  haS  a  good  lease  for  twenty-one  years 
from  the  date  of  the  payment  (/).  If  one  make  a  lease  to 
another  for  so  many  years  as  J.  S.  shall  name,  this  at  the 
beginning  is  uncertain ;  but  when  J.  S.  has  named  the  years 
(in  the  lifetime  of  the  lessor)  this  ascertains  the  commence- 
ment and  continuance  of  the  lease  accordingly :  but  if  the 
lease  had  been  made  for  so  many  years  as  the  executors  of 
the  lessor  should  name,  this  could  not  be  made  good  by  any 
nomination  (//).  A  lease  made  to  another,  until  a  child  en 
ventre  sa  mere  shall  come  to  the  age  of  twenty-one  years,  is 
not  good  as  a  lease  for  years  but  at  will  only  Qh). 

(d)  Duration  of  Terms  for  Years. 

What    certainty    is    requisite    generally.  —  The    duration    of 
leases  for  years  ought  to  be  ascertained  either  by  the  express 
limitation  of  the  parties  at  the  time  of  making,  or  by 
*  a  reference  to  some  collateral  act,  which  may  with  [*154] 
equal   certainty  measure    the   continuance  thereof,^ 

(c)  Bac.  Abr.  tit.  Leases  (L.  1).  (/)  Shep.  Touch.  273;  Co.  Lit.  45 

{d)  Id. ;  Co.  Lit.  4(5  b.  b ;  '(>  Co.  R.  35  a  ;  1  Roll.  Abr.  840. 

(e)  Bac.    Abr.    tit.  Leases   (L..  1) ;  (7)  Bac.  Abr.  tit.    Leases  (L.  2)  ; 

Co.  Lit.  46   b.     As  to    misrecital    of  Co.  Lit.  45  b;  1  Leon.  8G;  Plowd.  0, 

date,  see  Rowe  v.  Huntingdon,  Vau<!;h.  373,  524. 

73 ;    Bac.   Abr.    tit.    Leases    (L.    1) ;  {h)  Say     v.    Smith,    Plowd.    271  ; 

Palmer's  case,  4  Co.  R.  74.  Bishop  of  Bath's  case,  (5  Co.  R.  35  b ; 

Bac.  Abr.  tit.  Leases  (L.  3). 

1  Certainty  in  duration  of  tenancies;  not  for  years.  —  Examples: 
"During  the  existence  of  said  club,"  is  sufficiently  definite,  Alexander  v. 
Tolleston  Club,  110  111.  65;  for  the  season  of  1855  is  suflacicnt  in  lease  of  a 

251 


*lo4  THE  LEASE.  [Cu.  V.  S.  0. 

otherwise  they  will  be  void  (i).  So  an  agreement  for  a  lease, 
or  for  an  underlease,  must  mention  the  term,  and  from  what 
day  it  is  to  commence,  otherwise  it  will  not  be  sufficient  to 
satisfy  the  Statute  of  Frauds  (A;).  A  demise  may  be  made 
for  "  one  year  certain,  and  so  on  from  year  to  year,"  and  such 
demise  will  create  a  tenancy  for  two  years  at  the  least  (^). 
So  a  demise  may  be  made  "  for  six  months,  and  so  on  from 
six  months  to  six  months  until  determined  by  either  party," 
and  such  demise  will  create  a  tenancy  for  one  year  at  the 
least  (?n).  So  a  demise  may  be  made  from  two  years  to  two 
years,  or  from  three  years  to  three  years,  or  the  like  (w).  So 
a  lease  may  be  made  for  seven  years,  and  afterwards  from 
year  to  year  (o),  but  an  agreement  to  let  from  year  to  year, 
and  for  so  long  as  the  tenant  pays  rent,  and  the  landlord  has 
power  to  let,  confers  no  particular  estate  beyond  a  tenancy 
from  year  to  year  (jo).  An  instrument,  by  which  A.  agreed 
to  let  and  B.  to  take  certain  premises,  on  the  terms  that  B. 
should  pay  certain  specified  sums  varying  in  amount  at  the 
end  of  every  three  years  up  to  a  specified  date,  and  which 
provided  that  from  and  after  that  date  "  he  should  pay  the 
clear  annual  rental  of  9L  till  the  end  of  the  lease,''''  without 
mentioning  any  period  at  which  the  lease  was  to  terminate, 

(0  Bac.  Abr.  tit.  Leases  (L.  3).  45;  Roe  d.  Bree  v.  Lees,  2  W.  Blac. 

(i)  Bayley  r.  Fitzmaurice,  9  H.  L.  1171;   3   Prest.  Conv.  76.     And   see 

Cas.  78;  and  ante.  Kichaids  v.  Sely,  2  Mod.  80;  3  Keb. 

(/)  Doe  (/.  Chadborn  v.  Green,  9  A.  038. 

&  E.  G58  ;  Doe  d.  Monck  i'.  Geeckie,  (o)  Brown  v.  Trumper,  26  Beav.  11. 

5  Q.  B.  841 ;  1  C.  &  K.  307.  (/))  Wood  v.  Beard,  L.  R.,  2  Ex. 

(m)  Reg.  V.  Chavvton,  1  Q.  B.  247.  D.  30;  40  L.  J.,  Q.  B.  100;  35  L.  T. 

(7i)  Hennings  v.  Brabason,  2  Lev.  800. 

ferry,  on  Miramiclii  River,  and  lease  terminates  wlien  the  river  freezes. 
Eraser  u.  Drynan,  4  Allen  (N.  B.)  74;  lease  for  "so  long  as  the  lessee,  his 
heirs,  and  assigns  sliall  keep  the  furnace  and  buildings  on  tiie  premises"  con- 
tinues till  lessee  abandons,  and  he  may  rebuild  after  a  fire,  Cook  v.  Bisbee, 
18  Pick.  (Mass.)  527  ;  lease  for  whole  time  that  lessee  remains  postmaster 
terminates  with  expiration  of  his  commission  as  postmaster,  Kaston  v. 
Mitchell,  21  111.  App.  18!);  lease  until  premises  are  sold,  and  ninety  days 
notice  given,  expires  upon  sale  and  notice,  Dunn  r.  Jaffray,  3()  Kan.  408; 
lease  of  ])remise8  for  so  long  as  they  sliiiil  be  used  for  j»arti(!ular  i)urpose  ter- 
minates when  they  are  n(i  loTiger  used  for  kmcIi  purpose,  Horner  r.  Leeds,  25 
'n.  J.  L.  100,  115;  Hurd  v.  Gushing,  7  Pick.  (Mass.)  100,  170,  174;  during  the 
continuance  of  a  partnersliip  expires  with  close  of  partnersliip,  Russell  v. 
McCartney,  21  Mo.  A])p.  544. 

252 


Ch.  V.S.6.]  TERM   GRANTED    (DURATION).  *155 

was  held  good  oidy  for  the  time  previous  to  the  date  at  which 
the  91.  was  to  commence  {q}. 

Certainty  with  reference  to  collateral  matters.  —  If  a  man, 
grant  another  a  lease  of  land  for  ten  years,  and  that  if  at 
the  end  of  every  ten  years  he  shall  pay  the  lessor  a  certain 
quantity  of  tiles,  then  he  shall  have  a  perj^etual  demise  of 
the  land  from  ten  years  to  ten  years  continually  following:  ^ 
this  is  a  good  lease  for  ten  years  only,  and  bad  as  to  the  rest 
for  uncertainty  (r).  If  a  man  make  a  lease  for  years,  with- 
out saying  how  many,  it  is  a  good  lease  for  two  years  certain  ; 
because  for  more  there  is  no  certainty,  and  for  less  there  can 
be  no  sense  in  the  words  (.s-)  ;  but  if  a  man  lease  lands  for 
such  a  term  as  both  parties  shall  please,  it  is  but  a  lease  at 
will  (0-  A  tenancy  from  year  to  year  is  determinable  at 
the  end  of  the  lirst  as  well  as  of  any  subsequent  year,  unless 
in  creating  such  tenancy  the  parties  use  words  show- 
ing that  they  contemplate  a  tenancy  for  two  *  years  [*155] 
at  least  (?f).  If  premises  are  taken  "  for  twelve 
months  certain,  and  six  months'  notice  to  quit  afterwards," 
the  tenancy  may  be  determined  at  the  end  of  the  first  year 
by  a  six  months'  previous  notice  to  quit  (a:).  A  lease  for 
one  year  and  so  on  from  year  to  year  until  the  tenancy 
thereby  created  should  be  determined  as  after  mentioned, 
with    a   provision    that   either   party   might   determine   the 

(q)  Gwynne  v.  Ma3'nestone,  8  C.  &  (u)  Doe  r/.  Clarke   v.  Smaridfje,  7 

P.  302.  Q.  B.  957  ;  Doe  d.  Phimer  v.  Naiiiby, 

(r)  Say  v.  Smith,  Plowil.  271.  10  Q,  B.  473;   Bac.  Abr.  tit.  Leases 

(s)  Bisliop  of  B:ith's  case,  G  Co.  R.  (L.  3)  ;  Agard  v.  King,  Cro.  Eliz. 


n-) 


35 ;  Bac.  Abr.  tit.  Leases  (L.  3).  Legg  v.  Stnidwick,  2  Salk.  4U  ;  Deiin 

(/)  Bao.    Abr.    tit.    Leases   (L.  3)  ;  d.  Jacklin  v.  Cartwright,  4  East,  20, 

Bisliop  of  Batli's  case,  supra;    Com.  32;    Harris    r.    Evans,    1    Wils.  262, 

Dig.  Estates  (H.  I);    Richardson  v.  Birch  v.  Wright,  1  T.  R.  380. 
Langridge,  4  Taunt.  128 ;  Cole  Ejec.  (x)  Thompson  v.  Maberly,  2  Camp. 

448.  673. 

1  Perpetual  leases.  —  A  perpetual  lease  is  a  fee.  EfRnger  v.  Lewis,  32 
Pa.  St.  3(!7  (/ler  Lowrie,  C.  J.).  A  lease  for  a  hundred  years  to  one  and  his 
lieirs  and  assigns,  and  as  much  longer  as  he  and  they  think  proper,  at  annual 
rent  of  3.£  with  leave  to  surrender,  is  a  fee  determinable  at  will  of  lessee  only. 
Effinger  v.  Lewis,  fsiiprn. 

A  lease  for  such  term  as  lessee  pa^'s  rent  with  covenant  to  pa}'  every  year, 
no  limit  being  given,  is  a  perpetual  lease  determinable  at  will  of  lessor  only 
upon  forfeiture.     Folts  r.  Huntley,  7  AVend.  (N.  Y.)  210. 


*155  THE   LEASE.  [Ch.  V.  S.  6. 

tenancy  by  three  months'  notice,  creates  a  tenancy  for  two 
years  certain  (^).  A  demise  for  a  year,  and  so  from  year 
to  year,  is  a  lease  for  two  years  certain  at  least  (//) ;  so  if  a 
parson  make  a  lease  for  a  year,  and  so  from  year  to  year  as 
long  as  he  shall  continue  parson,  or  as  long  as  he  shall  live  ; 
this  is  a  lease  for  two  years  at  least,  if  he  live  or  continue 
parson  so  long  (z).  So  a  lease  for  "  the  term  of  six  months 
from  the  1st  of  January,  and  so  on  for  six  months  to  six 
months,"  until  six  calendar  months'  notice  is  given,  the  first 
payment  of  rent  to  be  on  the  1st  of  July,  is  a  tenancy  for 
twelve  calendar  months  at  least  (a). 

Lease  until  premises  required  to  be  pulled  down.  —  Where 
a  railway  company  let  premises  on  a  weekly  tenancy,  with 
a  collateral  agreement  that  the  tenant  might  have  them  until 
the  company  required  to  pull  them  down,  it  was  held  that 
the  company,  on  requiring  the  premises  for  their  own  occu- 
pation, and  not  to  pull  them  down,  might  determine  the 
tenancy  at  a  week's  notice  (5). 

Lease  so  long  as  rent  paid,  and  landlord  in  possession.  —  An 
agreement  that  the  tenant  shall  not  be  disturbed  so  long 
as  the  rent  is  paid  and  the  landlord  remains  in  possession 
creates  a  tenancy  during  the  joint  continuance  of  the  life  of 
the  tenant  and  the  estate  of  the  landlord  (c). 

Where  there  is  an  optional  number  of  years  fixed.  —  A  lease 
"  for  seven,  fourteen  or  twenty-one  years,  as  the  lessee  shall 
think  proper,"  is  a  good  lease  for  at  least  seven  years,  and 
not  void  for  uncertainty  ((/)•  ^  lease  made  in  1775,  for 
"three,  six  or  nine  years,  determinable  in  1788,  1791  or 
1704,"  is  a  good  lease  for  nine  years,  determinable  at  the  end 
of  three  or  six  years  (e).  But  the  lessee  alone  has  the 
option  to  determine  such  lease  at  the  earlier  periods,  on  the 
ground   tliat  every   doubtful   grant   must   be    construed   in 


0/)  Doe  <l  Chadborn  v.  Green,  0  A.  Lewis,  50  L.  J.,  Q.  B.  121 ;  44  L.  T. 

&  E.  058 ;  Doe  <1.  Monk  v.  Geeckie,  2'.):]. 

5  Q.  B.  841  ;   1  C.  &  K.  807.  (')  Wood  v.  Davis,  G  L.  R.,  Ir.  50. 

(2)  Bac.  Abr.  tit.  Leases  (L.  3).  {<!)  Ferguson   v.  Comisli,  2   Burr. 

(«)  Hefr.  V.  Ciiawtoi),  I  Q.  B.  247  ;  10:]2. 

Simiison  v.  Margitson,  11  Q.  B.  2:].  (e)  Goodrightr/.  Hall  y.  Richardson, 

{!))  Ciiesliire    Lines   (.'onnnittec   v.  3  T.  R.  402, 

254 


Cii.  V.  S.  6.]  TERM    GRANTKD    (DURATION).  *156 

favour  of  the  grantee  (/).  The  usual  form  of  making  such 
leases  at  present  is  to  insert  the  full  term  in  the  habendum, 
and  add  a  proviso  at  the  end  for  one  or  either  of  the 
parties  to  put  an  end  to  the  *  term  at  the  shorter  [*lo6] 
periods.  If  the  option  be  given  expressly  to  each 
party,  the  lease  may  be  determined  by  either,  or  by  his 
representative  entitled  to  the  reversion  or  term  (^)  ;  and 
where  the  option  was  given  to  the  respective  parties,  their 
executors  and  administrators,  it  was  held  that  the  devisee 
of  the  lessor  might  determine  the  lease  (li).  But  where  the 
lease  contained  a  proviso  that  if  either  of  the  parties,  their 
respective  heirs  or  executors,  should  wish  to  put  an  end  to 
the  term  at  the  end  of  seven  or  fourteen  years,  six  months' 
notice  in  writing  should  be  given  under  "  his  or  their  respec- 
tive hands,"  and  the  lessor  died,  leaving  three  executors ;  it 
was  held,  that  a  notice  signed  by  two  of  them  oidy,  although 
given  on  behalf  of  themselves  and  the  other  executor,  was 
not  a  good  notice  within  the  terms  of  the  proviso  (Q.  A 
lease  for  twenty-one  years  expressed  to  "be  determinable 
nevertheless  in  seven  or  fourteen  years  if  the  said  parties 
hereto  shall  so  think  fit,"  is  'determinable  only  b}^  consent  of 
both  the  parties,  although  it  may  have  been  their  intention 
to  give  the  option  to  either  of  them  (/c).  The  notice  must 
end  with  the  first  seven  or  fourteen  years  (or  other  stipulated 
period),  according  to  the  terms  of  the  proviso,  and  not  at 
any  other  time  (Z).  It  must  not  end  at  noon  on  the  right 
day  (???).  Sometimes  it  is  made  a  condition  precedent  that 
the  tenant  shall  not  only  give  the  above  notice,  but  also  duly 
pay  all  the  rent,  and  perform  all  the  covenants  on  his  part,  to 
the  termination  of  the  notice  (ii).    Such  a  condition  is  unrea- 


(/)  Dann   v.  Spurrier,  3  B.  &  P.       East,  491  ;  Doe  d.  Aslin  v.  Summer- 
39!);  Doe  d.  Webb  v.  Dixon,  9  East,       sett,  1  B.  &  Ad.  135,  141. 
15  ;  Price  v.  Dyer,  17  Yes.  356  ;  Cole  {k)  Fowell  r.  Frank,  3  H.  &  C  458 ; 

Ejec.  398.  34  L.  J.,  Ex.  6. 

(r/)  Goodright  v.  Mark,  4  M.  &  S.  (/)  Cadby  v.  Martinez,  11  A.  &  E. 

30;  Bird  v.  Baker,  1  E.  &  E.  12.  720;   Bird  v.  Raker,  1  E.  &  E.  12;  28 

{h)  Roe  d.  Bumford  v.   Ilnyley,  12       L.  J.,  Q.  B.  7;  Cole  Ejec.  398. 
East,  464.  (w)  Page  v.  More,  15  Q.  B.  684. 

(?)  Right  d.  Fisher   v.  Cuthcll,  5  («)   See,   for  instance,    Parker    v. 

Shepard,  6  L.  T.  G65. 
255 


*157  THE   LEASE.  [Cii.  V.  S.  6. 

sonable,  and  ought  to  be  objected  to  in  the  first  instance  (o). 
A  lease  for  thi-ee,  seven  or  ten  years,  determinable  on  notice, 
stipulated  that  a  quarter's  rent  should  be  paid  by  the  tenant 
on  taking  possession,  the  same  to  be  allowed  him  for  the  last 
quarter's  rent  "  on  the  determination  of  the  said  tenancy ;  " 
after  a  notice  to  determine  the  lease  at  the  expiration  of  the 
third  year  had  been  given,  and  before  its  expiration,  the 
parties  verball}'  agreed  that  the  party  should  continue  tenant 
for  another  year,  no  express  mention  being  made  of  the  terms 
of  the  tenancy ;  it  was  held,  that  the  tenant  continued  to 
hold  subject  to  the  terms  of  the  original  lease,  and  conse- 
quently that  the  payment  on  taking  possession  was  applica- 
ble to  the  last  quarter  of  the  fourth  year  (^^). 

Where  there  is  a  recurring  number  of  years.  —  If  a  lease  be 
made  for  twenty-one  years,  with  a  further  covenant  by  the 
lessor,  "  that  the  lessee  shall  have  the  same  for  twenty-one 

years  more  after  the  expiration  of  the  said  term,  and 
[*lo7]  so  from  twentj'-one  *  years  to  twenty-one  years,  until 

ninety-nine  years  thence  next  ensuing  shall  be  com- 
plete and  ended,"  the  first  twenty-one  years  are  not  to  be 
reckoned  part  of  the  ninetj'-nine  years  {q').  Where  one  made 
a  lease  for  three  3-ears,  and  so  from  three  years  to  three  years 
until  ten  years  should  be  expired,  it  was  held  to  be  a  lease 
but  for  nine  years,  and  that  the  odd  3'^ear  should  be  rejected, 
because  that  could  not  come  to  fall  within  any  three  entire 
years,  according  to  the  limitation  (r).  Where  there  was  a 
demise  of  freehold  and  copyhold  lands  at  an  entire  rent,  to 
hold  so  much  as  was  freehold  for  twenty-one  years  and  so 
much  as  was  copyhold  for  three  years,  and  there  was  a  cove- 
nant for  renewal  of  the  lease  of  the  copyhold  every  three 
years  toties  quoties  daring  the  twenty-one  years  under  the 
like  covenants;  and  that  in  the  meantime,  and  until  such 
new  leases  should  be  executed,  the  lessee  should  hold  the 
said  lands,  as  well  copyhold  as  freehold,  &c. ;  it  was  held, 
that  this  was  only  a  lease  of  the  copyhold  for  three  years, 

(o)  Cole  Ejcc.  no?.  (;•)   Bac.   Al.r.   tit.   Leases  (L.  3); 

(/O  Finch  V.  Miller,  5  C.  B.  428.  riowd.  272,  522  a. 

(q)  Manchester  College  i".  Trafford, 
2  Show.  3L 

256 


Ch.  V.  S.  6.]  TERM   GRANTED    (DURATION).  *158 

and  that  the  lessor,  after  the  three  years,  might  recover  the 
premises  in  ejectment  against  the  lessee,  there  not  having 
been  any  fresh  lease  granted  (s). 

Where  the  term  depends  on  a  contingency.  —  Sometimes  a 
term  is  limited  conditionally,  ex.  gr.  for  ninety-nine  years  if 
the  lessee  or  some  other  persons  therein  named  shall  so  long 
live  (0-  Where  one  made  a  lease  for  forty  years,  "if  his 
wife  or  any  of  their  issue  should  so  long  live  ;  "  it  was  ad- 
judged that  the  lease  was  not  determined  by  the  death  of 
one  of  them,  but  should  continue  till  all  were  dead,  by  reason 
of  the  disjunctive  oi\  which  goes  to  and  governs  the  whole 
limitation  ;  but  if  the  words  had  been  "  if  his  wife  and  issue 
should  so  long  live,"  there  clearly,  by  the  death  of  any  of 
them  within  the  forty  years,  the  term  had  been  at  an  end,  by 
reason  of  the  copulative  and.,  which  conjoins  all  together, 
and  makes  all  their  lives  jointly  the  measure  of  the  estate  (w). 
If  a  lease  be  made  to  two  for  years,  if  they  should  so  long 
live,  it  would  determine  by  the  death  of  one  of  them,  because 
their  life  is  but  a  collateral  condition  and  limitation  of  the 
estate,  which  therefore  is  broken  when  one  dies :  this  differs 
therefore  from  a  lease  to  tAvo  persons  for  their  lives,  for  that 
gives  an  estate  to  both  for  their  lives,  and  both  have  an 
estate  of  freehold  therein  in  their  own  right ;  which  conse- 
quently cannot  determine  by  the  death  of  one  of  them,  for 
then  the  other  could  not  be  said  to  have  an  estate  for  his  life, 
as  the  lessor  at  first  gave  it  (x).  A  lease  made  for  twenty- 
one  years  if  the  lessee  should  live  so  long  and  continue  in 
the  lessor's  service,  has  been  held  not  to  determine 
on  the  *  lessor's  death  (?/).  If  a  lease  be  made  for  a  [*158] 
certain  number  of  years,  providing  the  lessee  shall 
so  long  continue  to  occupy  the  premises  personally,  it  will 
cease  and  determine  whenever  he  parts  with  the  possession, 
even  by  compulsion  of  law  (z).     If  a  lease  be  made  to  J.  S. 

(s)  renny  d.  Eastliam  v.  Child,  2  (a-)  Bac.  Abr.  tit.  Leases  (L.  4) ; 

M.  &  S.  255.  Roll.  Rep.  309. 

(<)  Huglies  and  Crowther's  case,  13  (//)  Wrenford  v.  Gyles,  Cro.  Eliz. 

Co.  R.  6G;  BrudncU's  case,  5  Co.  R.  G43 ;  Noy,  70;  Cole  Ejec.  402. 
9  a ;  Cole  Ejec.  402.  (r)  Doe  d.  Lockwood  v.  Clarke,  8 

(u)   Co.    Lit.    '^25   a ;    Ld.    Vaux's  East,  185, 
case,  Cro.  Eliz.  209. 

25T 


*158  THE  LEASE.  [Ch.  V.  S.  7. 

for  twenty  j^ears,  if  tlie  coverture  between  A.  and  B.  shall 
so  long  continue  ;  this  is  a  good  lease  for  twenty  years 
although  the  dissolution  of  the  coverture  may  determine  it 
sooner  (a).  But  a  lease  to  one  generally  during  the  cov- 
erture of  A.  and  B.  would  create  but  a  tenancy  at  will,  by 
reason  of  the  uncertainty  of  the  duration  of  the  cover- 
ture (J).  Where  a  lease  for  years  is  made  to  A.  and  B.,  if 
they  should  so  long  live ;  or  to  A.,  if  he  and  B.  should  so 
long  live  ;  or  if  the  lessor  and  lessee,  or  the  lessor  and  J.  S. 
should  so  long  live  :  in  any  of  these  cases,  if  one  die  the 
lease  is  determined  (c).  If  a  lease  be  made  during  the  mi- 
nority of  J.  S.,  or  until  J.  S.  shall  come  to  the  age  of  twenty- 
one  3'ears,  these  are  good  leases  (^d)  ;  and  if  J.  S.  die  before 
he  come  to  his  full  age  the  lease  is  ended :  so,  if  a  man  make 
a  lease  for  twenty-one  3'ears,  if  J.  S.  live  so  long  (e),  or  if 
J.  S.  shall  continue  to  be  parson  of  Dale  so  long ;  these  and 
such  like  leases  are  good  (/).  If  A.  makes  a  lease  to  B. 
for  so  many  years  as  A.  and  B.  or  either  of  them  shall  live, 
not  naming  any  certain  number  of  years :  or,  if  the  parson 
of  Dale  make  a  lease  of  his  glebe  for  so  many  years  as  he 
shall  be  parson  there ;  this  is  not  certain,  neither  can  it  be 
made  so  by  any  means ;  and  yet  if  a  parson  shall  make  a 
lease  from  three  years  to  three  years,  so  long  as  he  shall  be 
parson,  this  is  a  good  lease  for  six  years,  if  he  continue  par- 
son so  long,  and  for  the  residue  is  void  for  uncertainty  ((jr). 

A  covenant  in  a  lease  for  lives  that  the  lease  is  good  for 
the  lives  mentioned  therein  has  been  held  not  to  warrant  the 
subsistence  of  such  lives  (A). 


Sect.  7.  —  Reddendum. 

"What  things  are  requisite  in  a  reservation.  —  The  reddendum 
or  reservation  of  rent  is  a  clause  in  the  lease,  whereby  the 

(a)  Sny  J-.  Smith,  I'lowd.  273.  .".;');    Boraston's   cnse,    3    Co.    R.    10; 

\b)  Bac;.  Ahr.  tit.  Leases  (L.  3).  Wliittoine  v.  Lamb,  12  M.  &  W.  813. 

(c)  Hnidiu'irs  fa.sc,  5  Co.  R.  fl  b;  {e)  Wrislit  i».  Cartwright,  1  Burr.  2. 

Daniel  v.  Hill,  Cro.  Jac.  377  ,  1   Roll.  (/)  Bac.  Abr.  tit.  Lenses  (L.  2,  3). 

R.  197;  Bailcs  v.  VVenrnan,  2  Veiitr.  (.7)  Bac.  Abr.  tit.  Leases  (L.  3). 

74.  (h)  Coatcs  v.  Collins,  L.  R.,  7  Q.  B. 

(</)  Bishop  of  Bath's  case,  0  Co.  R.  144;   40  L.  J.,  Q.  B.  157.     See  130, 

ante. 

^58 


Ch.  V.  S.  8.]   EXPRESS  COVENANTS  AND  AGREEMENTS.   *159 

lessor  reserves  some  new  thing  to  himself  out  of  that  which 
he  granted  before  ,  and  this  commonly  and  properly  succeeds 
the  habendum,  and  is  usually  made  by  the  words  "  yielding 
and  paying,"  or  similar  expressions.  In  every  good 
reservation  these  *  things  must  always  occur :  —  1.  [*159] 
It  must  be  by  certain  and  apt  words  («').  2.  It  must 
be  of  some  other  thing  issuing  or  coming  out  of  the  thing 
granted,  and  not  a  part  of  the  thing  itself,  nor  of  something 
issuing  out  of  another  thing  (/c).  3.  It  must  be  of  such  a 
thing  whereunto  the  grantor  may  have  resort  to  distrain. 
4.  It  must  be  made  to  one  of  the  grantors,  and  not  to  a 
stranger  to  the  deed  (I}.  But  the  usual  formal  reddendum 
in  a  lease  is  not  essential.  This  subject  is  more  fully  treated 
of  hereafter  (m). 


Sect.  8.  —  Express  Covenants  and  Agreements. 

(b)    Generally. 

"What  a  covenant  is  generally.  —  A  covenant  is  either  ex- 
pressed or  implied  —  it  subsists  either  in  fact  or  in  law.  An 
express  covenant  is  a  stipulation  in  a  deed  that  something 
has  or  has  not  been  done,  or  that  something  shall  or  shall 
not  be  done,  or  that  some  right  or  power  then  exists,  or  the 
like.  An  implied  covenant,  or  a  covenant  in  law,  is  that 
which  the  law  implies,  though  not  expressed  by  words  (n). 
He  who  makes  the  covenant  is  called  the  covenantor,  and  he 
to  whom  it  is  made  the  covenantee  (o).  By  8  »&  9  Vict.  c. 
106,  s.  5,  "  the  benefit  of  a  condition  or  covenant  respecting 
any  tenements  or  hereditaments  may  be  taken,  although  the 
taker  thereof  be  not  named  as  a  party  to  the  same  in- 
denture "  (p).  Before  this  enactment,  when  a  deed  was 
made  inter  partes,  no  one  who  was  not  expressed  to  be  a 

(i)  Parker  v.   Harris,  4   Mod.   76;  (m)  Chap.   X.,    Sect.    2,   and    see 

1  Salk.  262.  Smith  L.  &  T.  Ill  — 121  (2nd  ed.). 

(i)  Doe  d.  Douglas  v.  Lock,  2  A.  &  («)  Post,  Sect.  9. 

E.  705.  (o)  Shop.  Touch.  160  ;  2  Blac.  Com. 

(/)  Doe   d.  Barber  v.  Lawrence,  4  304. 

Taunt.  23.  ( ;))  Ex  parte  Cockburn,  re  Smith, 

12  W.  11.  184. 

.      259 


*1G0  THE   LEASE.  [Ch.  V.  S.  8. 

party  could  sue  on  a  covenant  contained  in  it ;  and  this 
was  not  a  mere  rule  of  construction  but  a  rule  of  positive 
law  {q}.  A.  covenant  is  valid  and  binding  although  indorsed 
on  the  deed  after  the  signing,  but  before  the  sealing  and 
delivery  (r). 

By  what  -words  covenants  may  be  made.  —  No  particular 
technical  words  are  requisite  towards  making  a  covenant  (s)  ; 
for  any  words  or  form  of  expression  which  import  an  agree- 
ment, or  show  the  party's  concurrence  in  the  performance  of 
a  future  act,  or  the  intention  of  the  parties  mutually  to  con- 
tract, will  suffice  for  that  purjDose  (t').  Thus,  "yield- 
[*160]  ing  and  paying,"  &c.  *  amount  to  a  covenant,  on 
which  an  action  lies  for  non-payment  (w) ;  so  yield- 
ing and  paying  such  a  rent  "  free  and  clear  of  all  manner  of 
taxes,  charges,  and  impositions  whatsoever,  is  a  covenant  to 
pay  the  whole  rent  discharged  of  all  taxes  before  or  after- 
wards imposed  (a;).  The  words  "provided  always,  and  it  is 
hereby  agreed  and  declared  that,"  &c.  create  a  covenant  (?/), 
and  so  do  the  words  "provided  always,  and  these  presents 
are  upon  the  express  condition  that,"  &c.  (s). 

Construction  of  covenants.  —  All  contracts  are  to  be  con- 
strued according  to  the  intent  of  the  parties,  as  expressed 
by  their  own  words  (a)  ;  and  if  there  be  any  doubt  upon  the 
sense  of  the  words,  such  construction  shall  be  made  as  is 
most  strong  against  the  covenantor,  lest  by  the  obscure 
wording  of  his  contract  he  should  find  means  to  evade  and 
elude  it  (J).     There  is,  however,  a  distinction  between  im- 


(q)  Chcstcrflold  and  Midland  Silk-  (u)  Hcllier  v.  Casbard,  1  Sid.  266 ; 

stone  Colliery  Co.  v.  Hawkins,  3  H.  Porter  i'.  Swctnani,  Styles,  400;  Smith 

&  C.  G77  ;  11  Jur.,  N.  S.  408.  L.  &  T.  90  (2nd  ed.). 

()•)  Lyburn  v.  Warrinj^ton,  1  Stark.  (.r)  Giles  v.  Hooper,  Carth.  135. 

162;  Reg.  v.  Aldborougli,  13   Q.  B.  (,'/)  Bac.  Abr.  tit.  Covenant  (A.). 

190;  Broke  v.  Sniitli,  Moor.  079.  (z)  Brooks  v.  Drysdale,  L.  It.,  3  C. 

(.s)  Stephenson's  o.-iso,  1  Leon.  324;  P.  1).  IJ2  ;  (iiite,  p.  113  (r). 

12  East,  182,  n.;  Smith  L.  &  T.  121  (<i)  Com.    Di^;.    tit.   Covenant    (E. 

(2nded.).  2);  I'lowden,  329 ,  Ipgulden  v.  May, 

(0  Bush  V.  Coles,  Carth.  232 ;  Duke  7  East,  241 ;  Smith  L.  &  T.  122  (2nd 

of  St.  Albans  v.  Ellis,  10  East,  352 ;  ed.). 

Sampson  v.  Easterby,  9  B.  &  C.  r>05 ;  (i)  Bac.  Abr.  tit.  Covenant  (F.). 
Cannock  v.  Jones,  3  Exch.  233  ;  Wood 
V.  Copper  Miners'  Co.,  7  C.  B.  900. 

2G0 


Cu.V.S.  8.]       EXrilESS    COVENANTS   AND   AGKEEMENTS.        *160 

plied   covenants   and   express   covenants,  namely,  that  the 
latter  are  to  be  taken  more  strictly  (c). 

Joint  or  several.  —  In  preparing  covenants  entered  into 
with  several  persons,  it  should  be  made  clear  w^hether  it  is 
intended  to  be  a  separate  covenant  with  each  person,  as  well 
as  a  joint  covenant  with  the  whole :  and  whether  a  covenant 
be  joint  or  several  (when  the  words  used  admit  of  either 
construction)  depends  upon  the  words  used,  the  subject- 
matter  of  the  covenant,  and  the  interest  which  passes  there- 
by (d).  If  the  words  of  the  covenant  are  expressly  and 
clearly  joint,  the  covenant  will  be  so  secured,  although  the 
interest  is  several ;  ^  and  vice  versa  (e).  If  the  words  used 
admit  of  two  constructions,  and  the  interest  of  the  cove- 
nantees is  joint,  the  covenant  will  be  construed  as  joint  (/) : 
but  if  the  interest  of  the  covenantees  is  several,  the  covenant 
will  be  construed  as  several  Qj^.  Where  A.  by  lease  demised 
a  house  and  land  to  B.  and  C.  for  a  term  of  years  at  \Ql.  per 
annum,  with  a  covenant  by  them  jointly  and  severally  to 
pay  taxes  and  rates,  &c.,  but  none  to  pay  rent;  and  B. 
occupied  the  whole  premises,  and  paid  the  rent  for  five 
years  ;  it  was  held  that  the  demise  being  joint,  the  rent  was 
payable  by  the  two  jointly  (A). 

(r)  Shubrick  i'.  Salmond,  3  Burr.  Bradburne   v.  Botfield,  14  M.  &  W. 

1689.  559. 

(c?)  Slingsby's  case,  5  Co.  K.  18  b;  (9)  Withers  v.  Birchman,  3  B.  &  C. 

3  Ch.  R.  126 ;  Duke  of  Northumber-  54 ;  James  v.  Emery,  2  Moo.  195 ;  5 

land  V.  Errington,  5  T.  R.  522 ;  South-  Price,  529,  53? ;  Servante   v.  James, 

cote  V.  Hoare,  3  Taunt.  89;  Enys  v.  10  B.  &  C.  410 ;  Mills  v.  Ladbrooke, 

Donnithorne,  2  Burr.  1190.  7  M.  &  G.  218;  Poole  v.  Hill,  6  M.  & 

(e)  Sorsbie    v.  Park,  12  M.  &    W.  W.  835 ;  Harcourt  i-.  Wyman,  3  E.xch. 

146;  Keightley   r.   Watson,    3    Exch.  817;  but  see  Thompson  v.  Hakewill, 

716;  Lee  v.  Nixon,  1  A.  &  E.  201.  19  C.  B.,  N.  S.  713;  35  L.  J.,  C.  P. 

(/)  Anderson  r.Martindale,l  East,  18;  Wilkinson  v.  Hall,  1  Bing.  N.  C. 

497 ;  Foley  v.  Addenbrooke,  4  Q.  B.  713. 

197 ;  Pugh  V.  Stringfield,  3  C.  B.,  N.  (/i)  Rex  v.  Great  Wakering,  5  B.  & 

S.  2  ;  Hopkinson  v.  Lee,  6  Q.  B.  904  ;  Ad.  971  ;  see  also  Levy  v.  Sale,  37  L. 

T.  7r'). 

1  Covenants  of  lessees'  (tenants  in  common),  if  there  are  no  words  severing 
their  liability,  are  joint,  and  the  survivor  is  solely  liable  for  rent.  White  v. 
Tyndall,  13  App.  Cas.  263,  reversing  20  L.  R.  Ir.  517,  and  restoring  18  L.  R. 
Ir.  263.  The  covenant  was  "for  themselves,  their  executors,  administrators, 
and  assigns,  that  they  the  said  G.  &  A.  or  some,  or  one  of  them,  their  execu- 
tors, administrators  and  assigns"  would  pay,  &c. 

261 


*161  THE  LEASE.  [Ch.  V.  S.  8. 

j|*161J  *  Lessee  liable,  notwithstanding  assignment.  —  The 
lessee  has  both  a  privity  of  contract  and  a  privity 
of  estate ;  and  though  he  assigns,  and  thereby  assigns  the 
privity  of  estate,  yet  the  privity  of  contract  continues,  and 
he  is  liable  in  covenant  notwithstanding  the  assignment  (e) :  ^ 
but  the  assignee  comes  in  only  in  privity  of  estate,  and  is 
therefore  liable  to  the  lessor  and  his  assigns  only  on  those 
covenants  which  run  with  the  land  and  for  those  breaches 
which  occur  during  the  continuance  of  such  privity  of  estate, 
and  before  he  assigns  over  (Jc~).^  But  he  continues  liable  to 
his  immediate  assignor,  his  executors  or  administrators,  upon 
any  express  covenant  by  him  in  the  deed  of  assignment,  for 
payment  of  the  rent  and  performance  of  the  covenants  con- 
tained in  the  original  lease  (Z).  If  a  covenant  by  two  lessees 
be  joint  and  several,  it  binds  the  executors  of  the  deceased 
lessee,  although  the  whole  term,  interest  and  benefit  sur- 
vived to  the  other  lessee  (>«)• 

"What  covenants  void.  —  A  covenant  to  do  a  thing'  which 

(J)  Eaton  V.  Jacques,  2  Doug.  4.55;  Wake,  3  Camp.  394  ;  Onslow  i'.  Cor- 

Chancellor   v.   Poole,  2    Doug.    7G4  ;  rie,  2  Madd.  330. 

Orgill  V.  Keamshead,  4  Taunt.  642 ;  (/)  Harris  v.  Goodwyn,  2  M.  &  Gr. 

1  Smith  L.  C.  77  (7th  ed.).  405;  9  Dowl.  409  ;  Burnett  v.  Lynch, 

{k)  Harley   v.    King,   5   Tyr.    692;  5  B.  &  C.  589;  Wolveridge  v.  Stew- 
Taylor  V.  Shum,  1  B.  &   P.  21 ;    Le  ard,  1  Cr.  &  Mee.  644. 
Keux  y.  Nash,  2  Stra.  1122;  Odell  v.  (m)  Enj's  v.  Dounithorne,  2  Burr. 

1190,  1197. 

*  The  lessee  continues  liable  after  assignment  upon  all  his  express  cove- 
nants. Walton  r.  Cronly,  14  AVend.  (N.  Y.)  63,  64  (per  Sutherland,  ,J.); 
Farmers'  Bank  v.  Mut.  Ass.  Society,  &c.,  4  Leigh  (Va.)  69,  84  (per  Tucker, 
J.);  Wall  V.  Hinds,  4  Gray  (Mass.)  256  (liable  tor  rent  and  ta.xes)  ;  Babing- 
ton  V.  O'Connor,  20  L.  R.  Ir.  246  (liable  for  rent). 

Debt,  however,  does  not  lie  against  him  for  rent,  but  covenant,  and  the 
lessee  has  a  remedy  over  against  the  assignee  in  assumpsit.  Fletciier  v. 
M'Farlane,  12  Mass.  4-]. 

2  The  assignee  is  liable  to  the  lessor  or  his  assignee  directly  upon  all  cove- 
nants which  run  with  tlie  land.  Provost  v.  Caldcr,  2  Wend.  (N.  Y.)  517  (in 
tills  case  to  lessor's  devisee);  Boyce  v.  Bakewell,  37  Mo.  492;  Berry  v. 
M'Mullen,  17  Serg.  &  11.  (Pa.)  84. 

His  liability  is  terminated  by  assigning  over  except  for  breaches  prior 
thereto.  Childs  v.  Clark,  8  Barb.  Ch.  (N.  Y.)  52,  60,  61  ;  Farmers'  Bank  v. 
Mut.  Asso.  Society,  &c.,  4  Leigh  (Va.)  69,  83,  84 ;  Weidner  v.  Foster,  2  Penn. 
23,  26  (per  Rogers,  J.)  ;  Wickersham  v.  Irwin,  14  I'a.  St.  108. 

He  is  not  liable  for  breaches  occurring  prior  to  taking  assignment. 
Thomas  i'.  Council,  5  Pa.  St.  13. 

2G2 


Cii.  V.  S.  8.]        EXPKESS   COVENANTS    AND   AGREEMENTS.     *162 

Upon  the  face  of  it  appears  to  be  prejudicial  to  the  public 
interest,  or  otherwise  contrary  to  law,  is  absolutely  void  (/t). 
For  illegality.  —  On  this  principle  it  was  held  that  neither 
the  covenant  to  pay  rent,  nor  any  other  covenant  in  a  lease 
expressed  to  be  made  for  the  purpose  of  the  premises  being 
used  to  boil  oil  and  tar,  contrary  to  the  provisions  of  a 
Building  Act,  could  be  enforced  against  the  lessee  (o). 

Covenant  for  impossibility,  &c.  —  A  covenant  to  do  a  thing 
which  is  impossible  is  void,  if  the  impossibility  exist  at  the 
time  of  making  the  covenant,  but  not  otherwise  (j3).  A 
covenant  in  a  lease  to  repair  during  the  term  does  not  take 
effect  where  the  lessor  does  not  execute  the  lease  (g).  A 
lessee  is  not  liable  for  the  breach  of  a  covenant  committed 
before  the  execution  of  the  lease,  but  subsequently  to  the 
day  from  w  hich  by  the  habendum  the  term  was  -  to  com- 
mence (r).  Where  a  covenant  is  founded  on  a  conveyance 
of  an  estate  which  proves  to  be  void,  and  no  estate  passes, 
the  covenant  is  void  also :  thus,  where  the  conveyance  was 
"  a  grant  of  so  much  of  a  term  as  should  be  unexpired  at  the 
death  of  A.,"  and  there  was  a  covenant  for  quiet  enjoy- 
ment, and  a  bond  for  performance;  the  *  conveyance  [*162] 
being  void  on  account  of  the  uncertainty  of  the  time 
when  the  term  was  to  commence  and  end,  the  covenants 
were  adjudged  to  be  void,  as  they  depended  on  the  estate  (s) : 
but  although  this  is  the  case  with  respect  to  all  dependent 
covenants,  it  is  otherwise  of  covenants  which  are  indepen- 
dent (0- 


(n)  Collins    v.   Blantern,   1    Smith  man  i'.  Ambler,  8  Exch.  72 ;  22  L.  J. 

L.  C.  3G9  (7th  ed.).  Exch.  81.   . 

(o)  Gas    Light    Co,    v.    Turner,   5  (r)  Shaw  r.  Kay,  1  Exch.  412 ;  Jer- 

Bing.  N.  C.  600 ;  6  Id.  324.  vis   v.  Tompkinson,  1   H.  &  N.   195, 

(;))  Shep.  Touch.  1()3.     See  Hall  u.  206;   Bird    v.  Baker,  1    E.  &  E.  12 ; 

Wright,  E.  B.  &  E.  746 ;  27  L.  J.,  Q.  28  L.  J.,  Q.  B.  7  ;  Browne  v.  Burton, 

B.  345;  Appleby  v.  Myers,  L.  R.,  2  5  D.  &  L.  289;  Steele  r.  Mart,  4  B.  & 

C.  P.  651 ;  36  L.  J.  C.  P.  331 ;  16  L.  C.  272. 

T.  609.  (s)  Capenhurst  v.  Capenhurst,  Sir 

{q)  Pitman  v.  Woodbury,  3  Exch.  T.  Raym.  27 ;  Hayno  v.  Maltby,  3  T. 

4  ;  Linwood  v.  Squire,  5  Exch.  234  ;  R.  438 ;  Co.  Lit.  456. 
Wheatley  v.  Boyd,  7  Exch.  20 ;  Swat-  (0  Northcote  v.  Underhill,  1  Salk. 

199  ;  1  Ld.  Raym.  380. 

263 


*162  THE   LEASE.  [Ch.  V.  S.  8. 

(b)    Covenants^  whether  "  Running  with  Land.^^ 

Meaning  of  "Running  with  Land."  — Covenants  are  either  real 
or  personal ;  the  former  are  such  as  are  annexed  to  an  estate, 
or  are  to  be  performed  on  it,  and  are  said  to  "  run  with  the 
land,"  so  that  he  who  has  the  one  is  subject  to  the  other. 
A  covenant  is  said  to  run  with  the  land  when  either  the 
liability  to  perform  it,  or  the  right  to  take  advantage  of  it, 
passes  to  the  assignee  of  that  land.^  A  covenant  is  said  to 
run  with  the  reversion  when  either  the  liability  to  perform 
it,  or  the  right  to  take  advantage  of  it,  passes  to  the  assignee 
of  that  reversion  (ji).  Covenants  which  run  with  the  land 
bind  those  who  come  in  by  act  of  law,  such  as  the  personal 
representatives  of  the  assignee  of  a  lessee,  as  well  as  those 
who  come  in  by  act  of  the  parties  (x) ;  for  the  personal 
representatives  of  a  lessee  for  years  are  his  assigns  (</). 
Covenants  which  run  with  the  land  therefore  bind  the 
assigns,  although  not  mentioned.'-^  But  in  preparing  cove- 
nants which  are  intended  to  run  with  the  land,  the  ""assigns" 
should  alwaj's  be  mentioned,  for  though  some  covenants  will 
bind  them  although  not  mentioned,  and  others  will  not  bind 
them  although  mentioned,  yet  there  is  a  middle  class,  in 
which  assignees  are  bound  if  mentioned,  but  not  otherwise, 
and  it  is  prudent  to  provide  for  the  possibility  of  a  covenant 
being  held  to  belong  to  this  class .^ 

(»)  Spencer's  case,  1   Smith  L.  C.  645;  Wollaston  v.  Hakewill,  3  M.  & 

60  (7th  ed.).  G.  297;  Ilopwood  v.  Whak>y,  0  C.  B. 

(jr)  Esp.  N.  P.  290.  744  ;  0  1).  &  L.  342 ;  Collins  o.  Crouch, 

(y)  Hornidtre  v.  Wilson,  11  A.  &  E.  13  Q.  B.  542. 


1  Covenants  real  (rclatincc  to  things  in  esse  at  the  time  of  demise)  run 
with  the  land  (or  tiie  reversion),  and  may  be  enforced  hy  (or  against)  as- 
sif^nees,  whether  named  or  not.  Vcrplanck  v.  Wright,  23  Wend.  (N.  Y.)  506, 
511  (per  Nelson,  Ch.  J.);  Hunt  v.  Danforth,  2  Curt.  C.  C.  592;  Eeke  v. 
Fetzer,  65  Wis.  55;  In  re  Haisley,  44  U.  C.  344,  347,  348;  Berrie  ?•.  Woods, 
12  Ont.  693  {per  Boyd,  C.)  ;  Norman  v.  Wells,  17  Wend.  (N.  Y.)  136  (they 
loere  however  named  in  this  c-ase)  ;  Watertown  v.  Cowen,  4  Paige  (N.  Y.)  510, 
514;  Thompson  v.  K'ose,  H  Cow.  rX.  Y.)  2()6,  269  {per  Sutherland,  J.). 

2  Covenants  strictly  personal  are  non-assignable.  Landen  v.  Mc- 
Carthy, 45  Mo.  106.  All  example  of  a  stric-tly  jiersoiial  covenant  is  the  cove- 
nant of  seizin  in  u  warranty  deed.     Tliis  is  broken  immediately,  if  at  all, 

264 


Cii.  V.  S.  8.]  EXPRESS   COVENANTS.  *163 

All  implied  covenants  run  with  the  land  (2),  but  with 
regard  to  express  covenants  some  little  uncertainty  has 
prevailed.  The  general  rules  (ci)  appear  to  be  that  (1)  an 
assignee,  whether  of  the  reversion  or  the  term,  can,  although 
not  named  in  the  covenant,  avail  himself  of  those  covenants 
which  touch  and  concern  the  thing  demised ;  (2)  that  of 
such  covenants,  those  which  concern  something  not  in  being 
at  the  time  of  the  demise,  bind  the  assignees  if  named,  but 
otherwise  not ;  and  (3)  that  covenants  which  do  not  con- 
cern the  thing  demised,  but  are  personal  between  the  cove- 
nanting parties,  do  not  bind  assignees  in  any  case. 

*  It  seems  that  in  equity  the  question  whether  [*163] 
assignees  are  bound  turns  on  the  doctrine  of  notice, 
so  that  by  the  effect  of  the  Judicature  Act  it  will,  if  the 
facts  admit  of  it,  be  immaterial  whether  a  particular  cove- 
nant run  with  the  land  or  not  (S).  This  doctrine,  which 
applies  in  cases  arising  out  of  the  relation  between  vendor 
and  purchaser  in  restrictive  covenants  only  (c),  may  perhaps 
be  held  to  apply  to  affirmative  covenants  also  in  cases  arising 
out  of  the  relation  between  landlord  and  tenant  (fZ). 

What  covenants  run  -writh  the  land.  —  The  followingf  cove- 
nants  seem  to  run  with  the  land,  so  as  to  bind  the  assignee, 
whether  of  the  reversion  or  the  term,  although  not  named :  * 

(z)  As   to   implied   covenants,  see  like  cases  discussed,  1 .  Sm.  L.  C,  7th 

Sect.  9,  post.  ed.  94  (a.d.  1876). 

(a)  See  Spencer's  case,  1  Sm.  L.  C.  (c)  Haywood  v.  Brunswick  Perma- 

60    (7th   ed.);    Smith    L.    &  T.  388 j  nent  Benefit  Building  Society,  L.  R., 

Fawcett  L.  &  T.  247.  8  Q.  B.  D.  403  —  C.  A. 

{b)  See  Tulk  v.  Moxhay,  2  Ph.  774 ;  {d)  See  per  Liudley,  L.  J.,  lb. 
Wilson  V.  Hart,  L.  R.,  1  Ch.  463,  and 

and  does  not  pass  to  an  assignee.  It  cannot  run  with  the  land,  for  there  is  no 
land  for  it  to  run  with.     See  cases  cited  jwst ;  note  to  Personal  Covenants. 

Covenants  not  strictly  personal  (relating  to  things  not  in  being,  but  after- 
ward to  arise),  though  assignable,  are  personal  unless  an  intention  to  bind 
assignees  is  expressed.  Tallman  v.  Coffin,  4  N.  Y.  134,  130;  Thompson  v. 
Rose,  8  Cow.  (N.  Y.)  266,  269;  Appeal  of  Winton,  111  Pa.  St.  387,  403; 
Hansen  v.  Meyer,  81  111.  321. 

1  The  following  covenants  have  been  held  to  run  with  the  land,  to  wit : 
covenant  to  pay  rent,  Stewart  v.  L.  I.  R.  R.  Co.,  102  N.  Y.  001 ;  Demarest  v. 
Willard,  8  Cow.  (N.  Y.)  206;  Allen  i-.  Culver,  3  Denio  (N.  Y.)  284;  Willard 
V.  Tallman,  2  Hill  (N.  Y.)  ;  Fletcher  v.  M'Farlane,  12  Mass.  43;  Wall  v. 
Hinds,  4  Gray  (Mass.)  256,  206  {per  Bigelow,  J.)  ;  Boyce  v.  Bakewell,  37  Me. 

265 


*163  THE   LEASE.  [Ch.  V.  S.  8. 

—  A  covenant  to  pay  rent  (e)  or  taxes,  or  to  repair  (/),  or 
to  leave  in  repair  (</)  :  to  maintain  a  sea  wall  in  esse  (A)  :  to 
repair,  to  renew  and  replace  tenant's  fixtures  and  macliinery 

(e)  Parker  v.  Webb,  3  Salk.  5.  (g)  Vin.  Abr.  Covenant   (K.    19)  ; 

(_/)  Dean  and  C.  of  Windsor's  case,  Doe  d.   Strode  v.  Seaton,  2  C,  M.  & 

5  Co.  R.  24 ;    Conan  v.   Keniise,   W.  R.  730 ;  Martyn  v.  Clue,  supi-a   (last 

Jon.  245  ;  Smitli  v.  Arnold,  3  Salk.  4;  point). 

Martyn  v.  Clue,  18  Q.  B.  6(31 ;  22  L.  (h)  Morland  v.  Cook,  L.  R.,  6  Eq. 

J.,  Q.  B.  147.  212,  2G7;  37  L.  J.,  Ch.  825. 

492;  Provost  v.  Calder,  2  Wend.  (N.  Y.)  517;  Berry  v.  M'Mullen,  17  S.  &  R. ' 
(Pa.)  84;  Weidner  v.  Foster,  2  Penn.  23;  Hannen  v.  Ewalt,  18  Pa.  St.  9; 
Salisbury  v.  Shirley,  G6  Cal.  223;  Allenspach  v.  Wagner,  9  Col.  127,  132; 
Verplanck  v.  Wrigiit,  23  Wend.  (N.  Y.)  50(5,  511  (per  Nelson,  Ch.  J.)  ;  to  pay 
taxes,  Salisbury  v.  Shirley,  66  Cal.  223;  to  repair,  Verplanck  v.  Wright,  23 
Wend.  506,  oil  {per  Xelson,  Ch.  J.) ;  Allen  v.  Culver,  3  Denio  (X.  Y.)  284; 
Crawford  v.  Bugg,  12  Ont.  8 ;  Thompson'  v.  Rose,  8  Cow.  (N.  Y.)  266,  269 
(per  Sutherland,  J.)  ;  Lametti  v.  Anderson,  6  Id.  307,  308;  to  pay  for  build- 
ings then  on  premises,  or  afterward  to  be  erected  to  replace  them,  In  re 
Haisley,  44  Upper  Canada,  345,  347,  349;  to  pay  for  permanent  improvements, 
Berrie  v.  Woods,  12  Ont.  693  (heirs  and  assigns  were  named,  but  (ppr  Boyd,  C.) 
semhle  if  they  had  not  been  named) ;  Lametti  v.  Anderson,  6  Cow.  (X.  Y.) 
302;  Ecke  v.  Fetzer,  65  Wis.  55;  or  for  new  erections.  Hunt  v.  Danforth, 
2  Curt.  C.  C.  592  (the  court  holding  that  the  covenant  touched  the  thing 
demised);  but  in  Thompson  v.  Rose,  8  Cow.  266,  269,  it  was  held  that  a 
covenant  to  pay  for  buildings  to  be  erected  would  not  bind  the  lessor's 
assignee  unless  named,  and  (per  Savage,  Ch.  J.,  in  Lametti  v.  Anderson,  6 
Cow.  (N.  Y.)  307,  308)  a  covenant  to   build  a  wall  does  not  run   with   the 

land, ;    covenant  not  to    sell   timber  off   demised  premises  runs  with 

land,  Verplanck  v.  Wright,  23  Wend.  (N.  Y.)  506;  also  covenant  not  to 
build,  Watertown  r.  Cowen,  4  Paige  (X.  Y.)  510,  514;  and  covenant  not  to 
let  any  other  site  on  same  stream  for  sawing  mahogany,  Norman  v.  Wells, 
17  Wend.  (N.  Y.)  136  ;  covenant  to  renew,  Piggot  r.  Mas(m,  1  Paige  (N.  Y.) 
412;  covenant  to  grant  purchase  privilege,  Xapier  u.  Darlington,  70  Pa.  St. 
64;  Kerr  v.  Day,  14  Pa.  St.  112;  covenant  of  warranty,  Sprague  c.  Baker, 
17  Mass.  585;  Withy  v.  Mumford,  5  Cow.  (X.  Y.)  137;  Suydam  v.  Jones, 
10  Wend.  (X.  Y.)  180;  Le  Ray  De  Ciiaumont  v.  Forsytlie,  2  Penn.  507; 
Wyman  v.  Ballard,  12  Mass.  304,  305,  300;  Mitchell  v.  Warner,  5  Conn.  497, 
521  ;  covenant  of  quiet  enjoyment,  Markland  r.  Crump,  1  Dev.  &  Bat.  (X.  C.) 
04  ;  also  (per  Xelson,  Ch.  J.,  in  Verplanck  7-.  Wriglit,  23  Wend.  (N.  Y.)  506, 
511)  covenants  for  further  assurance,  to  discharge  lessor  of  charges  ordinary 
and  extraordinary,  to  cultivate  lands  in  a  particular  manner,  to  reside  upon 
the  premises,  to  supply  them  with  good  water,  and  not  carry  on  particular 
trades,  &c.;  covenant  not  to  erect  building  on  common  in  front  of  premises 
conveyed,  Watertown  i;.  Cowen,  4  Paige  (N.  Y.)  510;  covenant  that  neither 
grantor  nor  his  heirs  shall  make  any  claim  to  tlie  land  conveyed,  Fairbanks 
I'.  Williamson,  7  Greenl.  (Me.)  96. 

All  covenants  which  are  conditions  annexed  to  the  estate  run  with  the 
land,  and  bind  the  assignee.  Verplanck  v.  Wright,  23  Wend.  (X.  Y.)  506, 
Gil ;  Hunt  v.  Danforth,  2  Curt.  C.  C.  592,  &c. 

266 


Ch.  V.  S.  8.] 


EXPRESS   COVENANTS. 


*164 


fixed  to  the  premises  (^)  :  not  to  plough  (/c)  :  to  use  the  land 
in  a  husbandlike  manner  (^)  :  to  lay  dung  on  the  demised 
land  annually  (m)  :  to  reside  on  the  demised  premises  during 
the  term  (jn)  :  to  permit  the  lessor  to  have  access  to  two 
rooms  excepted  from  the  demise  (o)  :  to  carry  all  the  corn 
produced  on  tlie  demised  land  to  the  lessor's  mill  to  be 
ground  (/?)  :  to  leave  the  land  as  well  stocked  with  game  at 
the  end  of  the  term  as  it  was  found  to  be  at  the  beginning  of 
it  (g)  :  to  supply  demised  houses  with  good  water  (r)  :  to 
repai]",  and  })ay  ground  rent  (.s-) :  for  quiet  enjoyment  (f)  : 
to  produce  title  deeds  (w) :  to  make  further  assurance  (a;)  : 
to  renew  the  lease  (?/)  :  to  endeavour  to  procure  a  renewal 
of  the  lease  for  another  life  (in  an  underlease  by  lessee  for 
lives)  (s)  :  and  to  build  a  new  smelting  mill  in  lieu  of  an  old 
one  in  a  lease  of  mines  (a). 

*  To   insure.  —  There    is    also   authority   that   the   [*164] 
covenant  to  insure  (^),  the  covenant  not  to  assign  or 
sublet  without  licence  (c),  and  the  covenant  not  to  carry  on 
a  particular  trade  (c?),  run  with  the  land. 


0)  Williams  v.  Earle,  L.  Il.,3  Q.  B. 
739. 

(i)  Cockson  V.  Cock,  Cro  Jac.  125. 

(/)  Walsh  V.  Watson,  Esp.  N.  P. 
295. 

(m) V.  Davis,   MS.  M.  T.,  42 

Geo.  3. 

(h)  Tatem  v.  Chaplin,  2  H.  Blac. 
133. 

(o)  Cole's  case,  1  Salk.  196,  S.  C. 
sub  nom.  Bush  v.  Coles,  1  Snow,  389  ; 
Carth.  232. 

(P)  Vyvyan  v.  Arthur,  1  B.  &  C. 
410.  See  Hemingway  v.  Fernandes, 
13  Sim.  228. 

(y)  Hooper  v.  Clark,  L.  R.,  2  Q.  B. 
200;  36  L.  J.,  Q.  B.  79. 

(?•)  Jourdain  v.  Wilson,  4  B.  &  A. 
266. 

(s)  Martin  v.  Clue,  supra: 

(t)  Lewis  V.  Campbell,  8  Taunt. 
715;  3  Moo.  35,  51;  Campbell  v. 
Lewis  (in  error),  3  B.  &  A.  392; 
Noke  V.  Awder,  Cro.  Eliz.  375,  4-36. 

(u)  Barclay  v.  Kaine,  1  Sim.  &  Stu. 
449. 


(.r)  Middlemore  v.  Goodhall,  Cro. 
Car.  503  ;  Kingdon  v.  Nottle,  4  M.  & 
S.  53;  King  v.  Jones,  5  Taunt.  418; 
4  M.  &  S.  188. 

(y)  Isteed  v.  Stoneley,  1  Anderson, 
82,  Brooke  v-  Bulkeley,  2  Ves.  jun. 
498  ;  Roe  v.  Hayley,  12  East,  464. 

(z)  Simpson  v.  Clayton,  4  Bing.  N. 
C.  758  ;  6  Scott,  469. 

(«)  Sampson  v.  Easterby,  9  B.  &  C. 
505  ;  Easterby  v.  Sampson  (in  error), 
6  Bing.  644  ;  1  C.  &  J.  105. 

(h)  Vernon  v.  Smith,  5  B.  &  A.  1. 
And  see  post,  Chap.  XVIL,  Sect.  1. 

(c)  Williams  v.  Earle,  L.  R.,  3  Q. 
B.  739;  37  L.  J.,  Q.  B.  231. 

(d)  Mayor  of  Congleton  v.  Patti- 
son,  10  East,  130.  The  obiter  dicta  of 
Lord  Ellenborough  and  Bayley,  J., 
seem  to  be  in  accordance  with  princi- 
ple. In  Wilson  v.  Hart,  L.  R,,  1  Ch. 
463,  it  was  held  that  a  tenant  from 
year  to  year  was  bound  by  his  laud- 
lord's  covenant  tliat  no  building  to  be 
erected  should  be  used  as  a  beer  shop, 
although  such  covenant  did  not  run 


267 


*164  THE  LEASE.  [Ch.  V.  S.  8. 

With  regard  to  the  covenant  to  insure  against  fire,  it  was 
held  in  Vernon  v.  Smith  (6)  to  run  with  the  land,  or  on  the 
ground  that  the  Building  Act,  14  Geo.  3,  c.  78,  s.  83,  in  that 
case  assumed  to  have  a  local  application  only,  enables  the 
landlord  to  have  the  insurance  money  laid  out  in  rebuilding, 
so  that  the  covenant  was  in  effect  a  covenant  to  repair.  The 
statute  has  since  been  held  to  have  a  general  application  (<?), 
so  that  if  the  reasoning  in  Vernon  v.  Smith  be  correct,  the 
covenant  to  insure  runs  with  the  land. 

Not  to  assign  without  licence.  —  The  covenant  not  to  assign 
or  sublet  without  licence  was  expressly  held  to  run  with  the 
land  in  Williams  v.  Earle  (/)  ;  but  in  the  later  case  of  West 
V.  Dobb  (//)  (where  the  point  arose,  but  did  not  require  to 
be  decided),  Blackburn,  J.,  who  was  one  of  the  two  judges 
who  decided  Williams  v.  Earle,  pointed  out  that  in  that  case 
assigns  were  named  in  the  covenant,  and  seems  to  have 
wished  to  confine  his  judgment  accordingly  (A).  However 
this  may  be,  the  covenant  not  to  assign  or  sublet  appears  to 
concern  the  thing'  demised  in  relation  to  its  state  at  the  time 
of  the  demise,  and  consequently  to  bind  assignees  Avhether 
named  or  not  (^). 

To  pay  for  improvements.  ^  —  It  has  been  stated  in  many 
prior  editions  of  this  work  that  a  "  covenant  by  a  lessor  to 
pay  on  a  valuation  for  all  trees  planted  (A;),  was  a  personal 
covenant  not  running  with  the  land,  and  for  this.  Grey  v. 
Cuthbertson  (/c)  was  cited ;  but  that  case,  which  is  very 
briefly  repeated,  seems  to  have  been  decided  on  the  ground 

with  the  land.     See,  too,  Wilkinson  (/;)  And  see /)r;- Baylcy,  B.,  in  Paul 

V.  Rogers,  2  I)e  G.,  J.  &  S.  62.  v.    Nurse,    8    15.    &    C.   489  ,    Doe   d. 

(e)  FJ.T    parte    Goreley,    .34    L.   J.,  Cheere  ?".  Smith,  5  Taunt.  795  ;  Bally 

Bank.   1.     In   Vernon   v.  Smith,    the  v.  Wells,  .3  Wils.  3.3 

judgment  of  Best, .!.,  proceeded  inde-  (/)  And  see  2  Sm.  L,  C.  at  p.  77. 

pendently  of  the  statute.  (/)  Grey  v.  Cutiibertson,  4  Doug. 

(/■)  L.  U.,  3  Q.  B.  739;   37  L.  J.,  .351,   2  Chit.  R.  482;  1  Selw.  N.  P. 

Q.  ij.  231.  448. 

(7)  L.  R.,  4  Q.  B.  034  ;  38  L.  J.,  Q. 
B.  289. 

^  Bind  assignees  if  named.  —  See  Lamctti  v.  Anderson,  6  Cow.  (N.  Y.) 
.307,308  {jmr  Savage,  Ch.  J.),  Thompson  v.  Rose,  8  Id.  200,  209;  Hunt  v. 
Diiiiforth,  2  Curt.  C.  C.  692;  Ecke  v.  Fetzer,  (i5  Wis.  55;  Bcrrie  v.  Woods, 
V2,  Out.  093;  In  vc  Ilaisley,  44  U.  C.  .315,  347,  349. 

2G8 


Ch.  V.  S.  8.]  EXl'UESS   COVENANTS.  *165 

that  assisfiis  were  not  named  in  the  covenant ;  and  from  the 
later  case  of  Gorton  v.  Gregory  (Q  it  may  perhaps  he  in- 
ferred, though  the  point  was  not  expressly  decided,  that  a 
covenant  to  pay  for  improvements  to  be  executed  on  the 
land,  whether  by  the  lessor  or  the  lessee,  runs  both  with  the 
land  and  the  reversion,  if  assigns  be  named;  and  this  is 
borne  out  in  principle  by  the  important  case  of  Mansel  v. 
Norton  (m)i  which  is  more  fully  noticed  elsewhere  (n). 

*  In  Minshull  v.  Oakes,  a  covenant  to  repair  and  [*165] 
leave  in  repair  (inter  alia)  all  buildings  which  should 
or  might  be  thereafter  erected  during  the  term  on  the  de- 
mised premises  was  considered  to  be,  not  a  covenant  abso- 
lutely to  do  a  new  thing,  but  to  do  something  conditionally, 
viz.  if  new  buildings  were  erected  on  the  demised  premises 
during  the  term  to  repair  them ;  and,  as  when  built  they 
would  be  part  of  the  thing  demised,  it  was  held  that  the 
assignee  was  bound,  although  not  named  in  the  covenant  (o). 
In  this  case  the  court  expressed  an  opinion  that  the  rule  that 
the  naming  the  assigns  in  the  covenant  will  bind  them  in 
relation  to  a  thing  not  in  esse  at  the  time  of  the  demise,  was 
neither  laid  down  in  Spencer's  case  nor  consistent  with  rea- 
son. The  rule,  however,  appears  to  have  been  recognized  as 
good  law  in  many  other  cases,  both  prior  (^p)  and  subsequent 
to  (5')  Minshull  v.  Oakes.  And  it  seems  to  be  consistent 
with  reason  that  the  naming  of  the  assigns  should  vary  the 
liability  (r). 

Personal  covenants  do  not  run  with  the  land.  —  A  covenant 
which  is  merely  personal  or  collateral  to  the  thing  demised 
does  not  run  with  the  land  or  the  reversion,  and  therefore 
assignees  are  not  bound  even  though  they  be  expressly 
named.  Of  the  nature  of  such  personal  covenants  are 
these :  ^  —  A  covenant  by  a  lessee  to  replace  chattels  which 

(/)  See  post,  note  (s).  Q.  B.  444;  Greenaway  t'.  Hart,  14  C. 

(m)  L.  R.,  22  Ch.  D.  (C.  A.)  769.  B.  340. 

(n)  Post,  Cli.  XX.,  Sect.  5.  (7)  Williams   v.   Earle,  \ihi   supra  ; 

(0)  27  L.  J.,  Ex.  104 ;  2  H.  &  N.  798.  West  v.  Dobb,  nbi  supra. 
(p)  Sampson  v.  Easterby,  (5  Bing.  (;)  But  see  contra,  1  Sm.  L.  C.  7G 

644,  Exch.:   Doughty  v.  Bowman,  4  (ed.  7). 

1  The  following  are  held  to  be  personal  covenants,  viz. :  the  covenants  of 
seizin   and  against   incumbrances.     Mitchell  v.  Warner,  5   Conn.  497,  503 ; 

269 


*166  THE   LEASE.  [Ch.  Y.  S.  8. 

should  become  damaged  or  be  superseded  by  new  ma- 
chinery (s)  (although  it  would  have  been  otherwise  in  the 
case  of  a  covenant  to  replace  fixtures)  (^)  :  to  give  the  lessee 
the  option  of  pre-emption  of  a  piece  of  ground  adjoining  the 
demised  premises  (/<)  :  not  to  sell  ha}^  &c.  (r)  :  not  to  keep 
a  beershop  within  a  certain  distance  of  the  demised  prem- 
ises (z)  :  a  covenant  to  pay  rent  and  repair,  made  icith  a 
mortgagor  and  his  assigns,  in  a  lease  granted  by  himself 
together  with  the  mortgagee  (y)  :  a  covenant  in  an  under- 
lease, whereby  the  lessor  covenanted  to  observe  and  indem- 
nify the  lessee  against  the  covenants  in  the  superior  lease, 
one  of  which  was  to  build  several  houses  on  the  land  (2) : 
and  a  covenant  by  lessee  for  himself,  his  executors  and 
assigns  not  to  have  persons  to  work  in  a  mill  to  be  erected 
on  the  demised  premises  who  were  settled  in  other  parishes 
without  a  parish  certificate  (a). 

Boxes  in  theatre.  —  Where  the  lessee  of  a  theatre  agreed  to 

repay  money  lent  to  him  b}-  the  plaintiff  on  a  day  cer- 
[*166]  tain,  and  that  until  payment  the  plaintiff  and  *  such 

persons  as  he    might   appoint  should  have  the  free 
use  of  two  boxes  (not  specified}  and  afterwards  assigned  his 

(s)  Gorton  v.  Gregory,  3  B.  &  S.  0/)  Webb  v.  Russell,  3  T.  R.  393; 

90;  31  L.  J.,  Q.  B.  302.    Such  a  cove-  Stokes  v.  Russell,  Id.  678;  Russell  v. 

nant  would   bind   executors  in   their  Stokes  (in  error),  1  H.  Blac.  502. 

representative  capacity.  (c)  Doughty  v.  Bowman,  11  Q.  B. 

(0  lb.  per  Willes,  .J.  444. 

(u)  Collison  V.  Lettsom,  6  Taunt.  (a)  Mayor,    &c.,    of    Congleton    r. 

224.  Pattison,    10    East,     130 ;    indirectly 

{v)  Lybbe   v.  Hart,  54  L.  J.,   Ch.  confirmed    by    Walsh    v.   Fussell,   0 

860,  /jei-Baggallay,  L.  J.  Bing.  163. 

(x)  Thomas  v.   Ilaj'ward,  L.  R.,  4 
Ex.  311;  38  L.. J.,  E.x.  175. 

Bickford  v.  Page,  2  Mass.  455;  Grecnby  v.  Wilcocks,  2  Johns.  (N.  Y.)  1,  5; 
Abbott  I-.  Allen,  14  Id.  248;  Kane  v.  Sanger,  Id.  89,  93;  "Withy  v.  Mumford, 
5  Cow.  137,  139  (/)«•  Savage,  Cii.  J.). 

The  following  are  personal  (at  least,  unless  assigns  are  named),  viz.:  to 
give  first  refusal  of  subsecjuent  lease,  Appeal  of  Winton,  111  Pa.  St.  387, 
403;  to  pay  for  fixtures  to  be  erected,  Hansen  r.  Meyer,  81  111.  321  ;  to  pay 
for  improvements,  Tallmaii  v.  Coffin,  4  N.  Y.  134;  for  re-entry,  Porter  v. 
Merrill,  124  Mass.  534,  541. 

Parol  agreements,  though  binding  upon  parties  charged  with  notice,  do 
not  run  with  the  land.  Wilder  v.  Miiine  Cent.  R.  R.  Co.,  66  Me.  332;  St.  L. 
A.  &  T.  H.  R.  R.  Co.  I-.  Todd,  30  III.  409. 

270 


Cn.  V.  S.  8.]  EXPRESS   COVENANTS.  *166 

interest,  it  was  held  that  this  was  a  mere  personal  contract, 
and  that  no  action  could  be  maintained  against  the  assignee 
for  refusing  to  permit  the  plaintiff  to  use  the  boxes  (6). 

Personal  chattels.  —  If  sheep  or  other  things  personal  be 
demised,  a  covenant  by  the  lessee  for  himself  and  his  assigns 
to  deliver  them  up  at  the  end  of  the  term  will  not  bind  the 
assigns  (c),  and  the  same  rule  applies  to  a  covenant  to 
deliver  up  mere  utensils  and  other  things  not  fixed  to  the 
demised  premises  Qd}. 

Condition  for  re-entry.  — It  may  be  added  here  that  a  con- 
dition for  re-entry  in  case  the  lessee  or  his  assigns  become 
bankrupt  runs  with  the  land  (e),  but  a  condition  for  re-entry 
in  case  the  lessee  or  his  assigns  be  convicted  of  any  offence 
against  the  game  laws  does  not  (/). 

Operation  of  Conveyancing  Act.  —  By  the  Conveyancing 
Act,  ss.  10  and  11  (//),  both  the  rent  and  benefit  of  every 
covenant  both  of  lessee  and  lessor,  "  having  reference  to  the 
subject-matter  of  the  lease,"  run  with  the  reversion.  By  the 
same  act,  s.  58 :  — 

"  (1.)  A  covenant  relating  to  land  of  inheritance,  or  de- 
volving on  the  heir  as  special  occupant,  shall  be  deemed  to 
be  made  Avith  the  covenantee,  his  heirs  and  assigns,  and  shall 
have  effect  as  if  heirs  and  assigns  were  expressed. 

"  (2.)  A  covenant  relating  to  land  not  of  inheritance,  or 
not  devolving  on  the  heir  as  special  occupant,  shall  be  deemed 
to  be  made  with  the  covenantee,  his  executors,  administrators 
and  assigns,  and  shall  have  effect  as  if  executors,  administra- 
tors and  assigns  were  expressed. 

"  (3.)  This  section  applies  only  to  covenants  made  after 
the  commencement  of  this  act." 

(c)  Covenants  whether  Dependent  or  Independent. 

General  rule.  —  As  to  what  covenants  shall  be  construed  to 
be  conditions  precedent  or  not,  it  has  been  laid  down  that 

(ft)  Flight  V.  Glossop,  2  B.  N.  C.  (r)  Eoe  v.  Gallicrs,  2  T.  R.  133. 

125.  (/)  Stevens  v.  Copp,  L.  R.,  4  Ex. 

(c)  Spencer's  case,  nhi  supra.  20;  38  L.  J.,  Ex.  175. 

((I)  Williams  v.  Earle,  L.  R.,  3  Q.  (g)  See  these  sections  at  length,  p. 

B.  739.  256,  post. 

271 


*167  THE  LEASE.  [Ch.  V.  S.  8. 

the  dependence  or  independence  of  covenants  must  be  col 
lected  from  the  sense  and  meaning  of  the  parties  to  be 
deduced  from  the  whole  instrument,  and  not  merely  from 
any  technical  words  (/t)  ;  and  that  in  whatever  order  cove- 
nants may  stand  in  a  deed,  their  precedency  must  depend 
on  the  order  of  time  in  wliich  the  intent  of  the  transac- 
tion requires  their  performance  (i).^     No  precise   technical 

words  therefore  are  required  in  a  deed  to  make  a 
[*167]  *  stipulation  a  condition  precedent   or   subsequent ; 

neither  does  it  depend  on  the  circumstance  whether 
the  clause  is  placed  prior  or  posterior  in  the  deed :  the  merits 
therefore  of  a  question  of  this  kind  must  depend  on  the 
nature  of  the  contract,  and  the  acts  to  be  performed  by  the 
contracting  parties,  and  any  subsequent  facts  disclosed  which 

(h)  Roberts  v.  Brett,  11  H.  L.  Cas.  (/)  Jones  v.  Barkley,  2  Doug.  684. 

337  ;  34  L.  J.,  Ch.  241. 

1  Independent  and  dependent  covenants.  —  An  independent  covenant 
is  an  unconditional  promise.  Edwards  v.  Gale,  52  Me.  360;  Simonds'  Admr. 
V.  Beauchamp,  1  Mo.  420.  It  does  not  depend  for  its  obligation  upon  any 
prior  performance  or  condition  (per  Gibson,  J.,  in  Bellas  v.  Hays,  5  S.  &  R. 
(Pa.)  427).  Such  promise  being  under  seal  binds  without  consideration.  2 
Whart.  on  Cont.  688. 

A  dependent  covenant  is  one  wliich  depends  upon  the  prior  performance 
of.  another  covenant  or  condition.  2  Whart.  on  Cont.  sec.  688;  Bellas  v. 
Hays,  5  S.  &  R.  (Pa.)  427. 

Where  a  covenant  depends  upon  a  corennnt,  the  covenants  are  mutual. 
Bellas  V.  Hays,  5  S.  &  R.  (Pa.)  427.  If  the  obligation  of  mutual  covenants 
is  simultaneous,  they  are  independent,  neither  being  a  condition  for  the  other. 

A  simple  contract  is  a  sufficient  consideration  for  a  covenant.  School 
Directors  i-.  McBride,  22  Pa.  St.  215;  Grove  v.  Hodges,  55  Id.  504  (the  remedy 
in  one  case  1)eing  ussmnpsit,  and  in  the  otlier  covenant).  A  covenantor  who 
has  sealed  is  liable  to  a  promisor  who  has  not  sealed,  if  the  latter  have  per- 
formed. Jennings  v.  McComb,  112  Pa.  St.  518,522  (per  Trunkey,  J.)  ;  Leake 
on  Cont.  141 ;  2  Whart.  on  Cont.  688. 

Want  of  mutuality,  so  long  as  a  contract  is  purely  executory,  is  fatal 
either  to  a  suit  for  specific  performance  or  for  damages.  Cleaves  v.  Wil- 
lougl.by,  7  Hill  (N.  Y.)  8:5  (per  Beardsley,  J.)  ;  Bellas  v.  Hays,  5  S.  &  R. 
(Pa.)  427  ;  Grove  v.  Hodges,  55  Pa.  St.  504,  516,  &c. 

Where  a  covenant  de])ends  u])nu  prior  performance  of  an  optional  con- 
dition, mutuality  is  wanting  and  the  contract  is  unilateral.  Frue  i'.  Houghton, 
6  Col.  318,  324.  J'erformance  in  such  case  lixes  the  liability  of  the  cove- 
nantor, making  his  promise  absolute.  Matter  of  Jane  Hunter,  1  Edw.  Ch. 
(N.  Y.)  1,  5;  Cutting  i;.  Dana,  25  N.  J.  Eq.  265;  Frue  v.  Houghton,  6  Col. 
318,  324. 

272 


Cn.  V.  S.  8.]  EXPRESS   COVENANTS.  *167 

have  happened  in  consequence  of  the  contract  (/r).^  Where 
a  covenant  is  part  only  of  the  consideration  on  one  side,  it  is 
■  an  independent  covenant,  and  not  a  condition  precedent  (/). 
If  one  party  covenant  to  do  one  thing,  the  other  party  doing 
another,  it  is  not  a  condition  precedent,  but  a  mutual  cove- 
nant (m).  If  the  contract  be  to  grant  a  lease  upon  payment 
of  1,440Z.  by  certain  instalments  at  stated  times,  the  granting 
of  such  lease  is  not  a  condition  precedent  to  a  right  to 
recover  the  1,440/.  (h).  It  is  a  general  rule  that  covenants 
are  to  be  treated  as  independent  rather  than  as  conditions 
precedent,  especially  where  some  benefit  has  been  derived  by 
the  covenantor  (o^? 

(k)  Hotham  v.  East  India  Co.,  1  T.  S.  G37  ;  28  L.  J.,  C  P.  100.    So  where 

R.  645;  Newson  v.  Smytliies?,  3  11.  &  A.  agrees  to  sell  and  B.  to  pureliase 

N.  840;  28  L.  J.,  Ex.  97  ;  1   F.  &  F.  an  estate,  and  B.  covenants  to  pay  A. 

477.  on  or  before  a  specified  day  a  certain 

(/)  Carpenter  v.  Creswell,  4   Bing.  snin  as  tlie  consideration  of  such  sale, 

409.  with  interest  to  the  time  of  completion 

(m)  Boone    v.   Eyre,   2    W.    Blac.  of  the  purciiase,  but  no  time  is  fixed 

1312;     Pordage     v.    Cole,    1    Wms.  for  executing    the    conveyance;    A. 

Saund.   319    b,    320    c ;    Newson    v.  may  maintain  an  action  for  the  pur- 

Smythies,  3  H.  &  N.  840;    28  L.  J.,  chase-money    and    interest,    without 

Ex.  97  ;  1  F.  &  F.  477 ;  Mackintosh  first  tendering  a  conveyance.      Mat- 

r.  Midland  Counties  R.  Co.,  14  M.  &  lock  v.  Kinglake,  10  A.  &  E.  50. 

W.  548;   London  Gas   Liglit   Co.   v.  (o)  Newson  r.  Smythies,  3  H.  &,  N. 

Chelsea  Vestry,  8  C.  B.,  N.  S.  215.  843. 

(n)  Baggallayr.  Pettit,  5  C.  B.,  N. 

1  Dependent  covenants. — Examples:  Lessee's  to  pay  rent  depends 
upon  lessor's  for  quiet  enjoyment.  Christopher  v.  Austin,  11  N.  Y.  216; 
Dyett  V.  Pendleton,  8  Cow.  (N.  Y.)  731 ;  Lawrence  v.  French,  25  Wend. 
(N.  Y.)  445 ;  Fitciiburg  Corp.  v.  Melven,  15  Mass.  268. 

Lessor's  express  covenant  to  make  repairs  may,  by  the  construction  of  the 
lease,  be  condition  precedent  to  lessee's  to  pay  rent.  Strohecker  v.  Barnes, 
21  Ga.  431. 

Lessee's  covenant  to  pay  rent  depends  upon  the  continued  existence  of  the 
thing  demised,  and  will  be  discharged  by  total  destruction  thereof.  For 
example,  if  apartments  are  leased  and  building  totally  destroyed  by  fire. 
Womack  v.  McQuarry,  28  Ind.  103;  Winton  v.  Cornish,  5  Ohio,  477;  Kerr  ?•. 
Merchants'  Ex.  Co.,  3  Edw.  Ch.  (N.  Y.)  315,  322  ;  Graves  v.  Berdan,  26  N.  Y. 
498.     In  case  of  partial  destruction,  as  where  land  remains,  it  is  otherwise. 

2  Independent  covenants.  —  Examples:  Lessor's  unconditional  cove- 
nant to  erect  building  for  use  of  lessee,  and  lessee's  to  pay  rent.  Edwards  v. 
Gale,  52  Me.  360.  Lessor's  to  make  repairs  and  improvements,  and  lessee's  to 
pay  rent.  Tibbits  v.  Percy,  24  Barb.  (N.  Y.)  39 ;  Speckels  v.  Sax,  1  E.  T>. 
Smith  (N.  Y.)  253,  255  (per  Woodruff,  J.,  unless  made  dependent)  ;  Hill  r. 
Bishop,  2  Ala.  320 ;  AVright  v.  Lattin,  38  III.  293 ;  Lunn  v.  Gage,  37  Id.  19 ; 

273 


*168  THE   LEASE.  [Ch.  V.  S.  8. 

Conditional  covenant  to  repair.  —  A  covenant  to  keep  a 
house  in  repair,  from  and  after  tlie  lessor  has  repaired  it,  is 
conditional;  and  it  cannot  be  assigned  as  a  breach  that  it. 
was  in  good  repair  at  the  time  of  the  demise,  and  that  the 
lessee  suffered  it  to  decay ;  for  the  lessor  must  repair  before 
the  lessee  is  liable  (/>).  Where  the  plaintiff  let  to  the 
defendant  a  messuage,  barn,  stable,  and  buildings,  and  the 
defendant  agreed  to  repair  the  said  messuage,  buildings, 
and  premises,  the  same  being  first  put  into  repair  hy  the 
2)laintiff';  it  was  held,  that  the  repair  by  the  plaintiff  was 
a  condition  precedent  to  the  obligation  on  the  defendant 
to  keep  in  repair;  that  that  condition  precedent  could  not 
be  divided:  and  that  the  plaintiff  was  not  entitled  to  re- 
cover for  the  non-repair  of  any  part  of  the  premises  with- 
out having  first  repaired  the  whole  (</).  So  if  a  lessee 
covenant  to  repair,  "provided  always,  and  it  is  agreed  that 
the  lessor  shall  find  great  timber,"  &c.,  this  makes  a  cove- 
nant on  the  part  of  the  lessor  to  find  great  timber  by  the 
word  "•  agreed,"  and  is  not  to  be  a  qualification  of  the  cove- 
nant of  the  lessee  (r)  :  but  where  the  words  were,  "  he  the 
said  lessor  finding,  allowing  and  assigning  timber  sufficient 
for  such  reparations  during  the  said  term,  to  be  cut 
[*168]  *  and  carried  by  the  lessee;"  it  was  held  not  to  be  a 
covenant  to  provide  timbei',  but  a  mere '  qualilication 
of  the  covenant  to  repair  (.s-),  and  where  the  lessee  agreed 
to  repair  and  the  lessor  to  find  timber  for  repairs,  Kay,  J., 
decided  that  the  lessee  could  not  recover  damages  from  the 

(/O  Slater  v.  Stone,  Cro.  Jac.  645.  Coward  v.  Gregory,  L.  K.,  2  C.  V.  153, 

(r/)  Neale  v.  Katcliff,  15  Q.  B.  910  ;  172  ;  post,  Cliap.  XVI.,  Sect.  1  (a). 

20  L.  J.,  Q.  B.  i;50;  Hunt  r.  Bishop,  (/)  Bac.  Abr.  tit.  Covenant  (A). 

8   Exch.   (375 ;    22    L.   J.,    Ex.    ;];]7  ;  (.s)  Tlionias  v.  Cadwallader,  Willes, 

lliitoliinson    v.    Read,   4    Exch.   701;  400. 

Allen  !'.  Culver,  3  Denio  (N.  Y.)  284,  294;  Allen  v.  Bell,  4  Wend.  (N.  Y.) 
500.  Lcs-sor's  to  pay  for  improvements,  and  le.ssee's  to  deliver  up  possession. 
Tailman  v.  Coflfin,  4  N.  Y.  1:54.  Lessor's  for  right  of  common  in  other  lands, 
and  lessee's  to  pay  rent.     Watts  i\  Coffin,  11  Jolins.  (N'.  Y.)  495,  498. 

In  Simonds'  Admr.  v.  Beauchamp,  1  Mo.  420,  it  was  held  that  a  covenant  to 
convey  by  a  general  warranty  deed  on  a  day  certain,  and  a  covenant  to  pay  the 
purchase-money  on  same  day,  made  in  separate  instruments,  were  independent. 

See,  also,  I'ost  v.  Vetter,  2  E.  I).  Sniitii  (N.  Y.)  248;  Ellis  i'.  McCormick, 
1  Hilt.  (N.  Y.)  ;Ji:J ;  Brady  v.  I'eiper,  1  Id.  01. 

274 


Ch.  V.  S.  8.]  EXPRESS   COVENANTS.  *168 

lessor  who  had  neglected  to  find  materials  for  an  injury 
caused  by  non-repair  (f).  Where  a  lease  for  lives  contained 
a  covenant  by  the  lessee  at  his  own  expense  to  keep  the 
demised  premises  in  j)roper  repair,  "having  or  taking  in  and 
upon  the  said  demised  premises  competent  and  sufficient 
house-bote,  hedge-bote,  lire-bote,  plough-bote  and  gate-bote 
for  the  doing  thereof,  without  committing  any  waste  or 
spoil:"  it  was  held  in  an  action  for  not  repairing,  that  the 
covenant  for  repair  was  absolute,  with  a  licence  to  the  lessee 
to  take  competent  and  sufficient  house-bote,  &g.  :  and  that 
the  finding  such  house-bote,  &c.,  was  not  a  condition  pre- 
cedent to  the  liability  of  the  lessee  to  repair  (m).  Where 
the  lessee  covenants  to  put  and  keep  the  demised  premises 
in  repair,  "  being  allowed  rough  timber  but  not  on  the  stem 
upon  the  demised  premises,  the  timber  to  be  fetched  and 
carried  at  the  expense  of  the  lessee."  In  an  action  of  cove- 
nant for  not  repaiiing,  it  is  sufficient  to  allege  that  the  lessor 
was  ready  and  unllinij  to  allow  and  provide  sufficient  rough 
timber  not  on  the  stem,  without  stating  that  he  did  actually 
furnish  it  (.r).  Where  a  lessee  covenanted  to  repair  a  house 
before  the  1st  of  June,  5,000  slates  being  found  by  the  lessor 
towards  the  repair,  and  afterwards  to  keep  in  repair  during 
the  term ;  it  was  held,  that  finding  the  slates  was  not  a  con- 
dition precedent  to  the  covenant  to  keep  in  repair,  but  only  to 
the  covenant  for  putting  the  premises  in  repair  before  the  1st 
"of  June  (y).  In  a  farming  lease  the  lessee  covenanted  with 
the  lessor  that  the  lessee  should  at  all  times  during  the  term 
repair  and  glaze  the  windows  and  also  the  hedges,  &c.,  when 
necessary,  "the  said  farmhouse  and  buildings  being  pre- 
viously put  in  repair  and  kept  in  repair  by  the  lessor ;  "  the 
latter  clause  was  held  to  amount  to  an  absolute  and  inde- 
pendent covenant  on  the  part  of  the  lessor  to  put  the 
premises  in  repair  (z).  The  words  "and  the  whole  of  which 
is  agreed  to  be  left  to  the  superintendence  of  the  lessee  and 
the  lessor's  son,"  annexed  to  a  covenant  by  the  lessor  to  do 

(0  Tucker  v.  Linger,  L.  R,  21  Ch.  (.r)  Martyii  r.  Clue,  18  Q.  B.  661; 

D.  18.  22  L.  J.,  Q.  B.  147. 

(u)  Dean  and  C.  of  Bristol  r.  Jones,  (y)  Mucclostone  v.  Thomas,  Willes, 

1E:&E.  484;    28  L.  J.,  Q.  B.  201.  146'. 

(0  Cannock  v.  Jones,  3  Exch.  233. 
275 


*169  THE  LEASE.  [Ch.  V.  S.  8. 

certain  work,  are  neither  a  condition  precedent  to,  nor  con- 
current ^yith,  the  covenant  (a).  The  covenant  to  repair 
generally,  and  to  repair  within  three  months  after  notice  in 

writing,  are  independent  covenants  (6)  ;  and  where 
[*169]  a  lessee  covenanted  *  to  leave  premises  in  repair  at 

the  expiration  of  the  term,  and  also  that  the  lessors 
might  direct  the  lessee  to  complete  the  repairs  by  giving  six 
months'  notice  in  writing,  it  was  held,  that  these  were  two 
distinct  and  separate  covenants,  the  former  of  which  was  not 
qualified  by  the  latter  (c)  ;  but  where  a  lease  contained  a 
covenant  Iw  the  lessee  to  repair  the  premises  at  all  times  (as 
often  as  need  or  occasion  should  require)  and  "at  farthest 
within  three  months  after  notice,"  it  was  held  to  be  one 
entire  covenant,  the  former  part  of  which  was  qualified  by 
the  latter  (r7).  Where  there  was  an  agreement  that  the 
lessee  should  spend  2001.  in  repairs  to  be  inspected  and  ap- 
proved of  by  the  lessor,  and  to  be  done  in  a  substantial 
manner,  and  the  lessee  Avas  to  be  allowetl  to  retain  the 
money  out  of  the  first  year's  rent  of  the  premises,  it  was 
held,  that  the  lessor's  approval  was  not  a  condition  precedent 
to  the  lessee  retaining  the  rent  {e').  AVliere  a  lessee  cove- 
nanted to  expend  a  certain  sum  in  substantial  and  beneficial 
improvements,  under  the  direction  or  with  the  approbation 
of  some  competent  surveyors  to  be  named  by  the  lessor,  the 
appointment  of  the  surveyors  was  held  to  be  a  condition 
precedent  to  the  lessees  liability  to  expeml  the  money  (/). 
Where  the  lessor  covenanted  to  pay  the  lessee  for  the  ma- 
nure, &c.,  at  the  end  of  the  term,  upon  the  lessee  delivering 
up  the  farm,  if  in  the  meantime  he  cultivated  it  on  the  four- 
course  S3'stem  and  performed  and  kept  all  and  singular  otlier 

(a)  Jones  V.  Cannock,  H  II.  L.  Cas.  (r)  Wood  r.  Day,  supra. 

700;  5Exdi.  71'];   Smitli  v.  Diirrant,  (d)  Ilorsefall  v.   Tcstar,   7   Tannt. 

0  U.  L.  Cas.  102.  385;  citi'd  4  C.  B.,  N.  S.  551. 

(i)  Doe  (I.  Morecraft  r.  M(  ii.\,  4  B.  (<)  Dallnian  r.  Knifr,  4  Bing.  N.  C. 

&  C.  GOO;    1  C.  &   P.  .']40;  Wood  r.  105,  rpcofrnizc'd  in  Stailliart  c.  Lee,  .'5 

Day,   7    Taunt.   040;    Baylis   v.    Lc  B.  &  S.  ;!04,  :]71. 

Gro8,  4  C.  B.,  N.  S.,  537,  552;  Corn-  ( /)  Coombe  ;•.  Greene,  11  M.  &  W. 

i.sh  ;•.  Cleife,  P.  II.  &  C.  440;  1.']  W.  480;  2  Dowl.,  N.  S.  lO'j:];  Cannock  r. 

B.  380;  Hoe  d.   Goatley  r.  Paine,  2  Jones,.')  Excli.  2:W ;  5  Id.  71:5;  3  II. 

Camp.  52ft;  Few  v.  Perkins,  30  L.  J.,  L.  Cas.  700;  Hunt  v.  Bishop,  8  Exch. 

Kx.  02;   15  W,  II.  713.  075. 

276 


Cii.  V.  S.  8.]  EXPRESS  COVENANTS.  *170 

his  covenants  in  the  lease :  it  was  hchl,  that  the  delivery  up 
of  a  certain  agreement  pursuant  to  a  covenant  in  the  lease 
was  not  a  condition  precedent  to  the  tenant's  riglit  to  recover 
for  the  manure,  &c.  (y).  Wliere  by  deed  reciting  an  agree- 
ment to  let  copyhold  premises,  A.  covenanted  that  as  soon 
as  he  had  procured  a  licence  from  the  lord  of  the  manor  he 
would  lease  them  to  B.  for  the*  then  residue  of  a  term  of 
yeavs  from  a  certain  day,  and  B.  covenanted  that  he  would 
repair  during  the  term  so  to  be  granted,  it  "svas  held  that  B. 
was  liable  on  this  covenant  after  having  occupied  the  prem- 
ises for  the  whole  term,  though  no  licence  had  been  procured 
from  the  lord  nor  any  lease  ever  made  (A). 

Option  to  determine  term,  &c.  —  Where  in  a  lease  for  seven 
years,  containing  the  usual  covenants  that  the  lessee  should 
pay  the  rent,  keep  the  premises  in  repair,  &c.,  there  was  a 
proviso  that  the  lessee  might  determine  the  term  at  the  end 
of  the  first  three  or  five  years,  giving  six  months'  previous 
notice,  and  then,  from  and  after  the  expiration  of 
such  notice,  and  *  payment  of  all  rents  and  duties  to  [*170] 
be  paid  by  the  lessee,  and  performance  of  all  his  cove- 
nants until  the  end  of  the  three  or  five  years,  the  indenture 
should  cease  and  be  utterly  void,  it  was  held,  that  the  pay- 
ment of  rent  and  performance  of  the  other  covenants  were 
conditions  precedent  to  the  lessee's  determination  of  the 
term  at  the  end  of  the  first  three  years,  and  that  his  merely 
giving  six  months'  notice,  expiring  within  the  three  first 
years,  was  not  sufficient  for  that  purpose  (/).  A  mining 
lease  contained  numerous  covenants  by  the  lessees,  and  also 
a  proviso  that  if  they  should  desire  to  quit  the  premises  at 
the  end  of  the  first. eight  years,  and  should  give  eighteen 
months'  notice  thereof  to  the  lessor,  then,  all  arrears  of  rent 
being  paid,  and  all  and  singular  the  covenants  and  agree- 
ments on  the  part  of  the  lessees  having  been  observed  and 
performed,  the  lease  should  at  the  expiration  of  the  eighth 
year  be  utterly  void  ;  but,  nevertheless,  without  prejudice  to 
any  claim  or  remedy  which  any  of  the  parties  might  then  be 
entitled  to  for  breach  of  any  of  the  covenants  ;  it  was  held, 

((/)  Newson  v.  Smythies,  3  II.  &  N.  (//)  Pistor  v.  Cater,  9  M.  &  W.  315. 

840;  28  L.  J.,  Ex.  97  ;  1  F.  &  F.  477.  (/)  Porter  v.  SliepliarJ,  6  T.  11.  G55. 

277 


*171  THE  LEASE.  [Ch.  V.  S.  & 

in  error,  that  the  performance  of  all  the  covenants  by  the 
lessees  was  a  condition  precedent  to  theii"  right  to  determine 
the  lease  (A;).  Another  Court  of  Error,  however,  appears  to 
have  entertained  a  different  opinion  (^).  A  lease  contained 
a  proviso,  that  if  the  lessor  should  give  notice  for  the  deliv- 
er}- up  of  the  land  to  him,  the  lessee  covenanted  to  sur- 
render it  up,  and  that  the  lessor  might  take  possession  of 
it,  paying  the  lessee  compensation  for  money  expended 
thereon  :  it  was  held,  that  the  proviso  did  not  operate  as  a 
mere  covenant  by  the  lessee  to  give  up  oh  notice,  but  ex- 
pressly gave  the  lessor  power  to  take  possession  ;  and  that 
he  might  do  so  without  having  first  paid  compensation  (m). 
So  where  it  was  agreed  that  the  lessor  should  within  eigh- 
teen months  from  the  date  of  the  lease  build  a  cattle-shed, 
the  whole  to  be  left  to  the  superintendence  of  the  lessee 
and  her  son  ;  it  was  held,  that  this  latter  provision  was  not 
a  condition  precedent  to  or  concurrent  with  the  lessor's  cove- 
nant to  build  (>/). 

Covenant  for  employment  of  particular  person,  &c.  —  On  a 
lease  of  some  coal  mines,  the  lessees  covenanted  that  the 
lessor  should,  when  he  thought  fit,  employ  a  fit  and  proper 
person  to  weigh  the  coals  and  keep  the  accounts,  the  person 
so  weighing  and  keeping  the  accounts  to  be  paid  by  the 
lessees ;  but  in  case  such  person  did  not  duly  attend  to  his 
duties,  the  lessees  were  authorized  to  discharge  him.  It  was 
held,  that  the  appointment  of  a  fit  and  proper  person  was  a 
condition  precedent  to  the  liability  of  the  lessees  to  pay  the 
wages,  and  that  tlierefore  they  were  not  bound  to  pay  the 

wages  though  they  had  not  dismissed  him  (o).  An 
[*171]  assignee  of  a  term  in  *  coal  mines  covenanted  with 

tlie  lessee  that  he  would,  so  long  as  he  should  be  in 
receipt  of  tlic;  rents  of  the  premises,  ])ay  to  the  lessors  the 
rent  payal)le  by  the  original  lease  —  and  would  keep  the 
lessee  liarndess  indemnified  a^jainst  the  rents  and  covenants 
of  tlie  lease:    it  was  held,  that  the  woi'ds  ''so  long  as   lie 

(^•)   Friar   v.   Grey,   r>  Kxoli.   r)84,  (»)  Cannock  i;.  Jones,  3  Exch.  233; 

597 ;  4  II.  L.  Cas.  5(55.  5  Id.  713;  3  II.  L.  Ca.s.  700. 

(/)  (irey  v.  Friar,  15  Q.  B.  901.  (<>)  Lawtou  v.  Sutton,  U  M.  &  \V. 

(ill)  Doe  d.  Gardner  u.  Kennard,  12  795. 
Q.  Ji.  214. 

278 


Ch.  V.  S.  8.]  EXPKESS   COVJiiXAXTS.  *171 

should  be  in  the  receipt  of  the  rents  "  did  not  extend  to  the 
covenant  to  indemnify  (p).  A  covenant  in  a  farming  lease 
provided  that  the  tenant  should  consume  and  convert  into 
manure,  and  spread  on  the  premises,  all  the  turnips,  &c., 
grown  thereon  ;  but  tliat  in  case  he  should  sell  off  any  part 
thereof,  which  he  was  at  liberty  to  do,  then  that  he  should 
for  every  ton  of  turnips,  &c.,  so  sold,  off,  bring  back  and 
spread  thereon  one  ton  of  manure  within  three  months  after. 
In  an  action  on  this  covenant  the  plaintiff  set  out  the  first 
part  only,  and  assigned  for  breach  that  the  defendant  carried 
away  fourteen  acres  of  turnips,  without  converting  the  same 
into  manure  and  spreading  the  same  :  it  was  held,  that  the 
covenant  was  an  alternative  one,  and  that  the  plaintiff  should 
have  negatived  the  bringing  back,  within  the  time  limited, 
an  equivalent  in  manure  (9-). 

(d)  Hoiv  discharged. 

Before  breach  by  deed.  —  Covenants  cannot  be  discharged 
before  breach  otherwise  than  by  deed;  therefore  a  parol 
licence  or  agreement,  dispensing  with  or  changing  the  terms 
of  such  an  obligation,  could  not,  before  the  Judicature  Act, 
be  pleaded  in  bar  to  an  action  of  covenant  (r) ;  and  it  does 
not  seem  that  that  act  has  made  any  difference. 

By  acts  of  parliament.  —  With  respect  to  the  operation  of 
acts  of  parliament  in  discharging  the  obligation  of  a  cove- 
nant there  is  this  difference  ;  viz.  that  where  a  man  covenants 
not  to  do  an  act  or  thing  which  it  was  lawful  to  do,  and  an 
act  of  parliament  is  made  afterwards  and  compels  him  to  do 
it,  the  statute  discharges  the  covenant.  So,  if  a  man  cove- 
nant to  do  a  thing  which  is  lawful,  and  an  act  of  parliament 
comes  in  and  hinders  liim  from  doing  it,  the  covenant  is  dis- 
charged (s).     But  if  a  man  covenant  not  to  do  a  thing  which 

(p)  Crossfield  i-.  Morrison,  7  C.  B.  t'.  Blakeway,  2  M.  &  G.  729,  752;  9 

286.  Dovvl.  846. 

(9)  Richards  v.  Bluck,  6  C.  B.  437  ;  (.9)   Brewster   v.   Kitcliell,   1   Salk. 

7  D.  &  L.  .325.  198 ;   Doe  d.  Marquis  of  Anglesea  v. 

(r)  Littler  v.  Holland,  3  T.  B.  090;  Rugeley,  6  Q.  B.  107,  114;  Brown  v. 

Thompson  v.  Brown,  7   Taunt.  656 ;  Mayor,  &c.,  of  London,  9  C.  B.,  N.  S. 

Sellers  v.  Bickford,  1  Moo.  460 ;  Plar-  726 ;  13  Id.  828 ;  Bac.  Abr.  tit.  Con- 

ris  V.  Goodwin,  2  M.  &  G.  405;  West  ditions  (Q.  2)  ;  Com.  Dig.  tit.  Condi- 
tion (L.  1). 

279 


*172  THE   LEASE.  [Ch.  V.  S.  9. 

at  the  time  was  unlawful,  and  a  subsequent  statute  makes 
the  action  lawful,  such  statute  does  not  discharge  the  cove- 
nant (£)  :  and  if  the  covenant  be  to  do  that  which  is  after- 
wards made  unlawful  in  part  only,  it  must  be  performed  so 
far  as  it  continues  lawful  (w).  If  there  be  a  covenant 
[*172]  to  do  a  thing  which  *  is  unlawful  by  statute,  the 
covenant  will  not  be  made  lawful  by  the  repeal  of 
the  statute,  because  the  covenant  was  bad  ab  initio  ;  although 
it  would  be  otherwise,  if  the  covenant  had  been  originally 
lawful,  but  had  been  made  unlawful  by  a  statute  wliich  was 
itself  afterwards  repealed  (a:). 

Discharge  of  covenant  not  to  build,  &c. — In  accordance  with 
these  principles,  it  has  been  held  that  a  covenant  to  build  a 
workhouse  on  the  land  demised  was  discharged  by  the  opera- 
tion of  the  Poor  Law  Amendment  Act,  1834  (^z)  ;  and  a 
covenant  not  to  assign  without  licence  (z),  and  a  covenant 
not  to  permit  assigns  to  build  (a)  by  a  compulsoiy  assign- 
ment to  a  company  under  the  Lands  Clauses  Consolidation 
Act,  1845, 

Lessee  of  tithes.  —  But  a  lessee  of  tithes  is  liable  on  his 
covenant  to  pay  rent,  notwithstanding  the  tithes  have  been 
commuted  for  a  rent  charge,  his  remedy  being  by  surrender 
of  his  lease,  under  the  88th  section  of  the  Tithe  Commuta- 
tion Act  (6  &  7  Will.  4,  c.  71)  (6). 


Sect.  9.  —  Implied  Covenants  and  Agreements. 

(a)    Generally. 

Covenants  in  law,  when  implied.  —  An  iinplied  covenant  OF 
covenant  in  law  is  one  which  the  law  intends  and  implies 
from  the  nature  of  the  transaction,  although  not  expressed 
by  words  in  the  deed.     "  A  covenant  in  law,  properly  speak 

(0    Brovvstor  v.   Kitcliell,    1    Salk.  (s)  Slipper  v.  Tottenham  il-  Hanip- 

198.  stead  Junction   R.  Co.,  L.  ]{.,  4  Eq. 

(u)  2  Eq.  Ca.  Abr.  2G.  112  ;  .'](!  L.  J.,  Ch.  841. 

(ir)  Jacques  v.  Witliy,  1   II.  Rlac.  («)  Haily  r.  I)e  Crespi^ny,  L.  R.,  4 

05.  Q.  15.  180  ;  .18  L.  J.,  Q.  B.  98. 

(y)  Doe    d.    An>,'lesea     (Lord)    i-.  (b)  Tasker   v.    Uullman,    3    Exch. 

Rugeley,  (Churcinvanleiis,)  G  Q.  15.  351. 
107. 

280 


Ch.  V.  S.  9.]   IMrLIED  COVENANTS  AND  AGREEMENTS.   *173 

iiig,  is  an  agreement  which  the  hxw  infers  or  implies  from 
the  use  of  certain  words  having  a  known  legal  operation  in 
the  creation  of  an  estate ;  so  that,  after  they  have  had  their 
primary  operation  in  creating  the  estate,  the  law  gives  them 
a  secondary  force,  by  implying  an  agreement  on  the  part  of 
the  grantor  to  protect  and  preserve  the  estate  so  by  these 
words  already  created :  as  if  a  man  by  deed  demise  lands  for 
years,  covenant  lies  upon  the  word  '  demise,'  which  imports 
or  makes  a  covenant  in  law  for  quiet  enjoyment"  (c). 

Upon  a  demise  —  That  the  word  "  demise  "  in  a  lease  for 
years  imports  and  makes  a  covenant  in  law  for  quiet  enjoy- 
ment, at  least  during  the  continuance  of  the  estate  out  of 
which  the  lease  is  granted,  is  clear  from  all  the  authorities 
(t?).i  By  8  &  9  Vict.  c.  106,  s.  4,  the  word  »  give  " 
or  the  word  "grant"  in  *a  deed  executed  after  the  [*173] 
1st  of  October,  1845,  "shall  not  imply  any  cove- 
nant in  law  in  respect  of  any  tenements  or  hereditaments, 
except  so  ^ar  as  the  word  '  give  '  or  the  word  '  grant '  may,  by 
force  of  any  act  of  parliament,  imply  a  covenant "  (e). 
Where  a  renewed  lease  of  a  mill  was  granted  to  a  bleacher 
for  the  purpose  of  carr3dng  on  therein  his  business,  parol 
evidence  was  held  admissible  to  explain  the  special  circum- 

(c)  Williams  v.  Burrell,  1  C.  B.  Ma}',  9  Ves.  .325.  And  see  the  cases 
429.  as  to  "  Quiet  Enjoyment "  further  dis- 

(d)  Adams  v.  Gibney,  6  Bing.  G56,  cussed,  post,  Chap.  XVII.,  Sect.  8. 
666;   Nokes'   case,   4   Co.   R.   80   b;  (e)  As  in  conveyances  to  railway 
Holder  v.  Taylor,  Hob.  12  ;    Eraser  v.  companies,  &c. 

Skey,  2  Chit.   R.   646;    Iggulden   v. 

1  Quiet  enjoyment. —A  covenant  for  quiet  enjoyment  in  a  lease  for 
years  is  implied  in  tlie  words,  "  give,"  "  grant,"  and  "  demise."  Stott  v.  Ruth- 
erford, 92  U.  S.  107,  109  ;  Gr-annis  v.  Clark,  8  Cow.  ?,(} ;  Barney  v.  Keith,  4 
Wend.  (N.  Y.)  502  ;  Young  v.  Hargrave's  Admr.,  7  Ohio,  394,  400  (per  Lane, 
J.)  ;  Cunningham  v.  Pattee,  99  Mass.  248,  251  ;  Gardner  v.  Keteltas,  3  Hill 
(N.  Y.)  330,  332  (per  Nelson,  Ch.  J.)  ;  Dexter  v.  Manley,  4  Cush.  (Mass.)  14, 
24 ;  Erost  v.  Raymond,  2  Caines  (N.  Y.)  188,  194  (per  Kent,  Ch.  J.). 

It  has  sometimes  been  held  that  the  words  "  grant  "  and  "  demise  "  are  not 
covenants  of  general  warranty  in  leases  for  life  or  other  estates  of  inheritance. 
Frost  V.  Raymond,  2  Caines  (N.  Y.)  188,  194  ;  Young  v.  Hargrave's  Admr.,  7 
Ohio,  394,  400  ;  Barney  v.  Keith,  4  Wend.  (N.  Y.)  502  ;  and  generally  it  may 
be  said  that  a  covenant  of  quiet  enjoyment  is  iinplied  in  a  lease,  Mack  i;. 
Patchin,  42  N.  Y.  167  ;  Mayor  of  N.  Y.  v.  Mabie,  3  Kern.  (N.  Y.)  160j  11 
Paige  (N.  Y.)  606;  Tone  v.  Brace,  8  Id.  597  ;  Vernam  v.  Smith,  15  N.  Y.  328 ; 
Graves  v.  Berdan,  26  Id.  498. 

281 


*1T3  THE  LEASE.  [Ch.  V.  S.  9. 

stances  under  which  the  lease  was  granted,  and  from  which 
an  implied  grant  to  use  the  stream  for  the  purpose  of  the 
business  might  be  inferred  (/). 

Wlien  an  implied  covenant  ceases.  —  A  covenant  in  law  in 
a  demise  ceases  with  the  estate  of  the  lessor,  and  does  not 
necessarily  continue  during  the  whole  term  expressed  to  be 
granted.  Therefore,  if  a  tenant  for  life  demise  by  indenture 
for  fifteen  jears,  without  any  express  covenant  for  quiet 
enjoyment,  upon  his  death  during  the  term  the  covenant  in 
law  implied  from  the  word  "  demise  "  will  cease  (^).  But 
an  express  covenant,  or  one  to  be  implied  by  construction  of 
words  used  in  the  deed  by  way  of  warranty  or  contract, 
would  continue  in  force  to  the  end  of  the  term  expressed  to 
be  granted,  and  not  merely  during  the  actual  continuance 
of  such  term  (A).  A  covenant  in  law  goes  to  the  assignee  of 
the  term,  and  he  has  advantage  of  it  during  the  actual  con- 
tinuance of  the  term  (z).  But  the  executors  or  administra- 
tors of  the  lessor  are  not  liable  where  the  teim  ceases  on  liis 
death,  and  the  lessee  is  subsequently  evicted  {k}. 

(b)    On  Letting  Furnished  Hoiise. 

No  implied  covenant  that  premises  fit  for  occupation.  —  In 
general,  there  is  no  implied  covenant  by  the  lessor  of  a  house 
or  of  land  that  it  is  reasonably  fit  for  habitation,  occuj^ation, 
or  cultivation  (l)  ;  ^  nor  that  the  house  will  endure  during 

C/)  Hall  V.  Lund,  1  H.  &  C.  07G;  (/)  Bac.  Abr.  tit.  Covenant  (E.  5)  ; 

32  L..  J.,  Ex.  113.  Vyvyan  i'.  Artlnir,  1  H.  &  C.  410. 

(ig)  Swan  v.  Stransham,  Dyer,  257  {k)  See  note  (v),  supra. 

a;    1    Leon.    179;    Owen,  105;    s.  c,  (/)  Hart  r.  Windsor,  12  M.  W.  08; 

cited  6  Bing.  006;  Adams  v.  Gibney,  Sutton  v.  TiMiii)k',  Id.  52,  overriding 

6  Bing.  050  ;    Tenfold  v.  Abbott,  o2  nisi  prnis  decisions  in  Kdwards  i:  Eth- 

L.  J.,  Q.  B.  07.  erington,  Ky.  &   U.  208 ;  7   D.  &  R. 

(h)  Williams   v.   Burroll,    1    C.  B.  117;  Collins  r.  Barrow,  1   Moo.  &  R. 

402;    Bragg  v.   Wiseman,   Brownlow  112;  Salisbury  v.  Marshal,  4  C.  &  P. 

&  G.  22.  05. 

'  Covenants  of  quality,  &c.  ;  not  implied.  — Tlicre  is  no  inii)lied  cove- 
nant that  an  unfurnished  house  or  other  tenement  is  reasonably  fit  for  occu- 
pation, Bowe  V.  Ilnnking,  l.'J5  Mass.  .380  (a  dwelling-house)  ;  Foster  v.  Peyser, 
9  Cush.  (Mass.)  242  (dwelling-house)  ;  Dutton  v.  Gerrish,  9  Id.  89,  93,  94  (dry 
goods  warehouse) ;  Naumberg  v.  Young,  44  N.  .T.  L.  331 ,  344,  345  ( jw)-  Depue, 
J.);  Gillis  r.  Morrison,  22  N.  B.  207  (dwelling-house);   Welles  i-.  Castles,  3 

282 


Ch.V.S.  9.]        IMrLIED   COVENANTS   AND  AGREEMENTS.        *173 

the  term ;  ^  nor  that  the  lessor  will  do  any  repairs  whatever 
(ill)?     And  if  the  landlord  is  bound  to  do  repairs,  there  is 

(m)  Ardon  v.  Pullen,  10  M.  &  W.  Keates  v.  Earl  Cadogan,  10  C.  B. 
321;  Gott  V.  Gandy,  2  E.  &  B.  845;       591. 

Gray  (Mass.)  323;  nor  that  any  premises  are  suitable  for  the  special  pur- 
poses for  which  they  were  leased.  Howard  i".  Doolittle,  3  Duer  (N.  Y.)  4G4, 
474  {per  Duer,  J.)  ;  Jaffe  v.  Harteau,  56  N.  Y.  398;  Cleves  v.  Willoughby,  7 
Hill  (N.  Y.)  83  {per  Beardsley,  J.)  ;  Hazlett  v.  Powell,  30  Pa.  St.  293,  298; 
O'Brien  i'.  Capwell,  59  Barb.  (N.  Y.)  497  ;  Robbins  v.  Mount,  4  llob't.  (N.  Y.) 
553,  4'61  ;  Royce  v.  Guggenheim,  106  Mass.  201,  202  {per  Gray,  J.)  ;  Loupe  v. 
Wood,  51  Cal.  586 ;  Scott  v.  Simons,  54  N.  H.  426  ;  Wilkinson  v.  Clauson,  29 
Minn.  91;  Edwards  i-.  N.  Y.  &  Harlem  R.  R.  Co.,  98  N.  Y.  245,  247  {per 
Earl,  J.). 

In  coal-mining  and  iron-mining  leases  there  are  no  implied  covenants  of 
the  existence  of  ore.  Harlan  v.  Lehigli  Coal  &  Navigation  Co.,  35  Pa.  St.  287 ; 
Clark  V.  Midland  Blast  Furnace  Co.,  21  Mo.  App.  58.  So  far  is  the  principle 
carried  that  a  lessee  must  pay  rent,  and  has  no  remedy  in  damages,  though 
the  premises  be  uninliabitable,  Fislier  v.  Lightliall,  \  Mack.  (D.  C.)  82  ;  Fos- 
ter V.  Peyser,  9  Cush.  (Mass.)  242  ;  or  dangerous  {per  Depue,  J.,  in  JS'aumberg 
V.  Young,  44  N.  J.  L.  331,  344,  345). 

A  false  expression  representing  the  premises  to  be  in  good  condition,  if  not 
knowingly  false,  will  not  (ordinarily)  amount  to  a  covenant  of  warranty. 

The  statement  tliat  the  sewer  was  in  excellent  condition,  though  in  fact  in 
bad  condition,  Wilkinson  v.  Clauson,  29  Minn.  91,  does  not  amount  to  a 
warranty. 

Where,  in  a  lease  of  a  warehouse,  lessor  had  said  "  he  would  warrant  it 
would  stand  if  filled  with  pig  lead,"  and  it  broke  down  on  account  of  being 
insecurely  built,  the  court  held  the  lessee  had  no  remedy. 

Where  the  false  representation  is  fraudulent  or  knowingly  false,  the  rule 
is  otherwise  {per  Field,  J.,  in  Bovve  v.  Hunking,  135  Mass.  380,  384).  The  les- 
sor will  be  liable  if  he  conceal  knowledge  that  premises  are  in  dangerous  con- 
dition {per  Field,  J.,  supra'),  as  that  house  is  infected  with  small-pox.  Minor 
V.  Sharon,  112  Mass.  477  ;  Cesar  i'.  Karutz,  60  N.  Y.  229.  In  Bowe  v.  Hunk- 
ing, supra,  a  lessor  was  held  not  liable  for  injuries  caused  by  giving  way  of 
the  tread  of  stair  not  known  by  him  to  be  unsafe.  In  Jaffe  v.  Harteau,  56  N. 
Y.  398,  damages  were  lield  not  recoverable  for  injuries  caused  by  the  explo- 
sion of  a  kitchen  boiler,  and  in  O'Brien  v.  Capwell,  59  Barb.  (N.  Y.)  497, 
for  injuries  caused  by  the  giving  away  of  a  piazza  railing. 

1  There  is  ordinarily  no  implied  covenant  that  a  building  will  endure  dur- 
ing the  term,  Branger  v.  Manciet,  30  Cal.  624  ;  but  total  destruction  of  the 
demised  property  (as  in  case  of  lease  of  apartments  where  building  is  burned) 
terminates  the  tenancy,  Stockwell  v.  Hunter,  11  Met.  (Mas.*.)  448;  and  dis- 
charges the  tenant  from  his  covenant  to  pay  rent.  Graves  v.  Berdan,  26  N.  Y. 
498.     See  post,  note  3. 

-  Covenants  of  lessor  to  repair  not  implied,  except  ■when.  —  There  is 
no  implied  coven.'Uit  in  lease  of  an  entire  building  on  lessor's  part  to  repair. 
Weinsteine  v.  Harrison,  66  Tex.  546;  Rogan  v.  Dookery,  23  Mo.  App.  313 ; 
Hughes  V.  Vanstone,  24  Mo.  App.  637,  639 ;  Vai  v.  Weld,  17  Mo.  232;  Kahn 
V.  Love,  3  Or.  206  ;  Mumford  -.  Brown,  6  Cow.  (N.  Y.)  475  ;  Howard  v.  Doo- 
little, 3  Duer  (N.  Y.)   464 ;    Brewster  v.  Miller,  33  Cal.  341 ;    Sherwood  v. 

283 


*174  THE   LEASE,  [Ch.  V.  S.  9. 

no  implied  condition  that  if  not  done  the  tenant  may  quit 
(>i)  ;  that  should  be  the  subject  of  an  express  stipulation  (o). 
Furnished  house.  —  There  is,  however,  an  important 
[*174]  exception  to  the  general  rule.  In  *  letting  a  fur- 
nished house,  the  lessor  impliedly  promises  that  it  is 
fit  for  occupation.  So  it  was  held  in  Smith  v.  Marrable  (/'), 
where  a  tenant  for  five  or  six  weeks  was  held  justified  in 
quitting  without  notice  on  the  ground  of  the  house  being 
infested  with  bugs ;  and  this  case,  although  shortly  after- 
wards doubted  by  more  than  one  member  of  the  same  court 
which  decided  it  ((7),  was,  in  1877,  affirmed  in  Wilson  v. 
Finch-Hatton  (r),  where  its  princij)le  was  held  applicable  to 

(n)  Surplice  ;■.  Farnsworth,  7  M.  &  Finch-Hatton  was  applied  by  Field,  J., 

G.  576;  8  Scott,  N.  R.  307.  to  a  case  of  infection  by  measles. 

(o)  As  in  Furnivall  v.  Grove,  8  C.  (</)  See,  especially,  per  Parke,  B., 

B.,  N.  S.  400  ;  30  L.  J.,  C.  P.  3.  in    Hart    v.  AVindsor,    ubi   supra.     It 

(p)  11  M.  &  W.  5;  12  L.  J.,  Ex.  was,  however,  expressly  approved  of 

223.     And  see  Campbell  v.  Wenlock,  by  Lord  Abinger  in  Sutton  v.  Tem- 

4  F.  &  F.  710.     See  also  Bird  v.  Lord  pie,  t(bi  supra. 

GreviUe,  1  C.  &  E.  317,  where  the  rule  (r)  L.  R.,  2  Ex.  D.  336 ;  36  L.  T. 

of  Smith  V.  Marrable  and  Wilson  v.  473  ;  46  L.  J.,  Ex.  489 ;  25  W.  R.  537. 

Seaman,  2  Bosw.  (N.  Y.)  130  ;  Branger  r.  Manclet,  30  Cal.  624 ;  Doupe  v. 
Genin,  45  N.  Y.  119 ;  1  Sweeney  (N.  Y.)  25  ;  Joyce  v.  De  Giverville,  2  Mo. 
App.  506 ;  Post  v.  Vetter,  2  E.  D;  Smith  (N.  Y.)  248  ;  Welles  v.  Castles,  3 
Gray  (Mass.)  323  ;  Scott  v.  Simons,  54  N.  H.  426 ;  Cole  r.  McKey,  66  Wis. 
500  ;  Purcell  v.  English,  86  Ind.  34  ;  Libbey  v.  Tolford,  48  Me.  316  ;  Estep  v. 
Estcp,  23  Ind.  114;  Humphrey  v.  Wait,  22  U.  C.  C.  P.  580;  Krueger  v.  Fer- 
rant,  29  Minn.  385;  Gill  v.  Middleton,  105  Mass.  477,478  (joer  Ames,  J.)  ; 
Hill  V.  Woodman,  14  Me.  38. 

Covenant  to  repair ;  ■when  implied.  —  There  is  an  implied  covenant  to 
repair  the  common  j)ortions  of  building  leased  to  different  tenants,  Looncy  v. 
McLean,  129  Mass.  33 ;  and  if  lessor  fail  to  repair  a  common  stairway  lie  will 
be  liable  to  tenant  for  injuries,  Walkins  r.  Goodall,  138  Mass.  533,  536.  The 
lessor  held  liable  for  injuries  to  tenant  caused  by  obstructions  of  ice  upon 
common  piazza,  arising  from  defects  in  common  pipe.  Worthington  ti.  Parker, 
11  Daly  (N.  Y.  Superior  Ct.)  545.  Lessor  impliedly  covenants  to  repair  roof 
of  building  if  lie  has  demised  lower  story.  Contra  Doupe  v.  Genin,  45  N.  Y. 
110;  liohl  V.  O'Brien,  12  Daly  (N.  Y.)  160.  Tenant  in  top  of  building  may  re- 
cover damages  for  injury  to  furniture  caused  by  the  building  failing  from  its 
unsafe  condition.  lOagle  v.  vSwayze,  2  Daly  (N.  Y.)  140.  Lessor  is  liable  to 
tenant  occupying  part  of  a  building  for  damages  caused  by  a  fall  of  a  chimney. 

In  Piatt  );.  Farney,  16  111.  App.  216,  it  was  held  that  a  lessor  was  not  liable 
for  the  injuries  if  tiie  want  of  repair  was  caused  by  acts  of  third  j)arties. 

In  Woods  V.  Naumkeag  Steam  C'otton  Co.,  134  Mass.  357,  it  was  hehl  not 
to  be  the  duty  of  lessor  to  remove  the  snow  and  ice  from  flight  of  stone  steps 
(witliout  railing)  leading  to  street,  thougli  so  constructed  as  to  occasion  accu- 
mulations, there  being  no  change  since  tenancy  began. 

284 


Cn.  V.  S.  9.]   IMPLIED  COVENANTS  AND  AGREEMENTS.   *175 

defective  drainage,  in  the  case  of  a  house  in  London  let  from 
the  7th  May  to  the  31st  July,  and  although  the  drains  were 
repaired  by  the  landlord,  and  the  house  tendered  in  a  whole- 
some condition  on  the  2Gth  of  May,  tlic  tenant  (who  had  at 
once  declined  to  occupy)  was  held  neither  liable  for  the 
agreed  rent  nor  for  use  and  occupation. 

(c)    On  Letting   Unfurnished  House  at  Loio  Rent. 

Another  important  exception  to  the  rule  that  there  is  no 
implied  condition  of  litness  in  letting  a  house,  has  been 
introduced  by  the  Housing  of  the  Working  Classes  Act, 
1885  (48  &  49  Vict.  c.  72,  s.  14),  (which  applies  to  lettings 
at  certain  iow  rents  only),  which  is  as  follows:  — 

''  In  any  contract  made  after  the  passing  of  tliis  act  for  hab- 
itation by  persons  of  the  working  classes  of  a  house  or  part 
of  a  house,  there  shall  be  implied  a  condition  that  the  house 
is  at  the  commencement  of  the  holding  in  all  respects  rea- 
sonably fit  for  human  habitation.  In  this  section  the  expres- 
sion '  letting  for  habitation  by  persons  of  the  working  classes  ' 
means  the  letting  for  habitation  of  a  house  ,  or  part  of  a 
house  at  a  rent  not  exceeding  in  England  the  sum  named  as 
the  limit  for  the  composition  by  sect.  3  of  the  Poor  Rates 
Assessment  and  Collection  Act,  1869  "  [i.e.  in  the  metropolis 
20?.,  in  Liverpool  13?.,  in  Mancliester  or  Birmingham  10/., 
and  elsewhere  8/.]  "  and  in  Scotland  or  Ireland  4/." 

The  effect  of  this  section  (which  may  perhaps  be 
best  described  as  *  an  enactment  applying  the  doc-  [*175] 


The  distinction  between  a  furnished  for  temporary  occupation  only,  there 
and  an  unfurnished  liouse  (which  was  is  the  implied  warrant3' ;  but  it  is 
not  express!//  drawn  in  Smith  v.  Mar-  submitted  that  this  view  of  Smith  r. 
rable)  was  exi)ressly  approved  of  in  Marrable  is  incorrect,  and  that  both 
Wilson  V.  Finch-IIatton.  The  case,  al-  on  principle  and  on  the  authority  of 
though  re-argued  before  three  judges,  \Yiison  v.  Finch-Hatton,  as  far  as  it 
Kelly,  C.  B.,  Pollock,  75.,  and  Huddle-  goes  (for  Kelly,  C.  B.,  appears  to 
ston,B.,  on  account  of  its  importance,  have  grounded  his  judgment  at  least 
was  ultimately  decided  without  hesi-  partly  upon  the  brevity  of  occupa- 
tation.  In  Powell  r.  Chester,  52  L.  tinn),  the  duration  of  tlie  tenancy  is 
T.  722,  Bacon,  A''.-C.,  said  that  Smitli  immaterial,  on  tlie  ground  —  if  on  no 
V.  Marrable  was  only  an  authorit}-^  for  other  —  that  a  furnished  house  is  far 
the  proposition  tliat  in  taking  fur-  less  easily  examined  than  an  unfur- 
nished apartments  at  the  seaside,  or  nished  one. 

285 


*175  THE  LEASE.  [Cii.  V.  S.  9. 

trine,  with  all  its  consequences,  of  Wilson  v.  Finch-Hatton, 
to  unfurnished  houses  let  at  rents  therein  mentioned), 
may  clearly  be  avoided  by  express  stipulation  excluding  its 
operation. 

Implied  covenants  by  lessee.  —  In  the  absence  of  any  ex- 
press covenant  on  the  subject,  a  covenant  or  promise  is 
implied  on  the  part  of  the  lessee  that  he  will  use  the 
buildings  in  a  tenantable  and  proper  manner  (s),^  and 
that  he  will  manage  and  cultivate  the  lands  in  a  good  and 
husbandlike  manner,  according  to  the  custom  of  the  coun- 
try (f)  :  but  not  that  he  will  make  a  certain  quantity  ^f 
fallow,  and  spend  a  certain  quantity  of  manure  thereon,  and 
keep  the  buildings  in  repair,  or  any  other  stipulation  not 
arising  out  of  the  bare  relation  of  landlord  and  tenant  (li). 
Only  the  prevailing  course  of  good  husbandry  and  manage- 
ment in  the  neighborhood  need  be  proved  (a;),  and  it  will 
be  considered  applicable  to  all  tenancies  in  whatever  way 
created,  whether  verbal  or  in  writing,  unless  expressly  or 
impliedly  excluded  by  the  terms  actually  agreed  on  (y). 

Covenants,  -when  implied  from  express  -words.  —  Where  a 
lessee  covenanted  to  plough,  sow,  manure,  and  cultivate  the 
demised  premises  (except  the  rabbit-warren  and  sheep-walk) 
in  a  due  course  of  husbandry,  it  was  held  that  it  amounted 


(s)  Horsefall  r.  Mather,  Holt,  N.  P.  Martin   v.    Gilliam,   7    A.  &  E.  450 ; 

C.  7;  Leach  v.  Thomas,  7  C.  &   P.  Wilkins  ;•.  Wood,  17  L.  J.,  Q.  B.  319. 

327 ;  Harnett  v.  Maitland,  10  M.  &  W.  («)  Brown  v.  Crump,  6  Taunt.  300. 

257;    Yellowly   v.   Gower,   11    E.\ch.  (x)  Legh  r.  Hewitt,  4  East,  154. 

294.  (,'/)  Wigglesworth    v.    Dallison,    1 

(0  Powlcy  V.  Walker,  5  T.  R.  373;  Doug.  190;  1  Smith  L.  C.  598  (7th 

Legh  V.  Hewitt,  4  East,  154 ;  Anger-  ed.)  ;  Senior  i-.  Armytage,  Holt,  N.  P. 

stein  V.  Ilandson,  1  C.,  M.  &  R.  789;  C.   197;  Hutton  v.  Warren,   1  M.  & 

Hallifax  v.  Chambers,  4  M.  &  W.  002 ;  W.  400. 


'  Use  in  tenantable  manner.  — "  This  implied  ol)ligation  is  part  of  the 
contract  itself,  as  inucii  so  as  if  incorporated  into  it  by  e.xjjress  language  "  {per 
Waite,  C.  J.,  in  United  States  v.  Bostwick,  94  U.  S.  53,  05,  00). 

The  premises  must  be  "used  in  a  proi)er  and  tenant-like  mamier,  witliout 
exposing  the  buildings  to  ruin  or  waste  by  acts  of  omission  or  commission" 
{per  Gibbons,  J.,  in  Nave  v.  Berry,  22  Ala.  382,  390). 

Lessee  must  keep  tlie  premises  in  as  good  repair  as  he  received  them,  ordi- 
nary wear  and  tear  and  accidental  injuries  excepted,  nor  sulTer  voluntary 
waste  {per  Hall,  .1.,  in  Hughes  r.  Vanstone,  24  Mo.  Aj)p.  0;'.7).     See  7)os<. 

280 


Cn.  V.  S.  0.]        IMPLIED   COVENANTS   AND    AGREEMENTS.      *176 

to  a  covenant  not  to  plough  the  sheep-walk  (s).  Where  a 
lessee  covenanted  that  he  would,  at  all  times  and  seasons  of 
burning  lime,  supply  the  lessor  and  his  tenants  with  lime  at 
a  stipulated  price,  for  the  improvement  of  their  lands  and 
.repair  of  their  houses :  it  was  held,  that  this  was  an  implied 
covenant  also  that  he  would  burn  lime  at  all  such  seasons  ; 
and  that  it  was  not  a  good  defence  to  plead  that  there  was 
no  lime  burned  on  the  premises  out  of  which  the  lessor 
could  be  supplied  (r/).  So  a  covenant  by  a  lessee  to  pen  and 
fold  his  flock  of  sheep,  which  he  should  keep  upon  the 
premises,  upon  such  parts  where  the  same  had  been  usually 
folded,  was  held  to  amount  by  implication  to  a  covenant  to 
keep  a  flock  of  sheep  (h}.  A  landlord  having  accepted  the 
offer  of  a  tenant,  whose  term  was  expiring,  to  continue 
tenant,  provided  he  could  not  And  any  other  tenant  at  the 
rent  it  appeared  to  him  to  be  worth  by  a  certain  day,  it  was 
held  to  be  an  implied  condition,  that  the  tenant  should  allow 
persons  applying  for  the  farm  to  go  over  it,  and  that, 
the  condition  not  having  baen  performed,  the  *  con-  [*170] 
tract  was  at  an  end  (c). 

Brewery.  —  On  the  demise  of  a  brcAvery,  with  the  exclusive 
privilege  of  supplying  ale,  it  would  seem  that  no  covenant 
can  be  implied  with  respect  to  such  a  privilege  from  the 
word  "demise  "  (r?).  Where  in  an  agreement  for  a  lease 
from  the  plaintiff  to  the  defendant  of  certain  works,  the 
plaintiff  agreed  to  supply  to  the  defendant  the  whole  of 
the  chlorine  still  waste  as  it  came  from  the  still,  at  a 
given  rate  per  cwt.,  and  not  to  part  with  any  of  the 
still  waste,  except  to  the  defendant,  it  was  held,  that  the 
defendant  was  bound  to  take  the  whole  of  the  waste 
which,  during  his  occupancy,  came  from  the  plaintiff's 
still  (e). 

Riglit  of  sporting.  —  In  Newton  V.  Wilmott  a  demise  was 


(2)  Duke  of  St.  Albans  v.  Ellis,  16  (c)  Doe  d.  Marquis  of  Plertford  v. 

East,  .352.  Hunt,  1  M.  &  W.  (31)0. 

(a)  Earl  of  Shrewsbury  v.  Gould,  (d)  Hinde  v.  Gray,  1  M.  &  G.  195; 

2  B.  &  A.  487.  1  Scott,  N.  R.  123. 

(6)  Webb  V.  riumnier,  2  B.  &  A.  (e)  Bealey  i-.  Stuart,  7  H.&N.  753; 

746.  31  L.  J.,  Ex.  281. 

287 


*176  THE   LEASE.  [Cii.  V.  S.  9. 

made  of  a  mansion-house  and  land,  with  the  sole  licence  of 
sporting  over  all  other  lands  of  the  lessor's,  and  the  lessor 
covenanted  that  if  any  of  his  tenants  should  obstruct  the 
lessee  in  the  enjoyment  of  his  licence,  then  the  lessor  would, 
on  the  requisition  of  the  lessee,  give  the  tenant  notice  to. 
quit,  and  would  enforce  such  notice.  The  court  held  that 
there  was  no  breach  of  this  covenant  by  the  lessor  subse- 
quently demising  some  of  his  lands  for  a  term  of  years,  with- 
out any  clause  to  prevent  the  tenant  from  obstructing  the 
person  having  the  licence  of  sporting  to  enjo}-  his  licence, 
and  without  reserving  a  power  to  give  notice  to  quit  if  he 
did  (/). 

Mining  lease.  —  In  the  Earl  of  Glasgow  V.  Hurlet  Alum 
Company  a  lease  of  alum  mines  gave  the  lessee  the  right  to 
obtain  alum  from  certain  coal  wastes.  A  subsequent  lease 
of  the  coal  mines  provided  that  nothing  thereby  granted 
should  injure  the  rights  of  the  parties  Avho  held  the  alum 
mines.  The  alum  existed  in  the  coal  wastes.  The  coal 
lessees  could  not  thoroughly  work  the  coal  without  remov- 
ing the  pillars  which  supported  the  roof ;  but  by  doing  this, 
the  alum  would  be  rendered  impossible  to  be  reached :  it 
was  held  by  the  House  of  Lords  that  the  coal  pillars  could* 
not  be  removed  (,^).  A  covenant  will  not  be  implied  in  a 
lease  of  mines  for  the  lessees  to  sink  a  pit  or  shaft,  although 
various  provisions  of  the  lease  cannot  be  carried  into  effect 
without  their  doing  so  (//). 

The  tendency  of  modern  decisions  is  not  to  imply  cove- 
nants or  stipulations  which  might  and  ought  to  have  been 
expressed  if  intended  (/). 

(_/")  Nowton  r.  Wilniott,  8  M.  &  W.  surface  and  niinerals  beneath  grants 

711.  a  lease  of  the  minerals,  there  is  not, 

(7)  Earl     of    Cilasgow     r.     Ilurlet  outside  the  eontraet,  an  implied  reser- 

Alum  Co.,  3  II.  L.  Cas.  25.  vation  of  any  right  to  have  the  sur- 

(/i)  James  c.  Coehrane,  7  Exeh.  170 ;  face  supported  by  the  minerals. 
8   Id.   55(J.     See  also,    as    to    mining  (')  Asjxlin   r.  Austin,  5  Q.  B.  071 ; 

leases,  Rowhotham  v.  Wilson,  8  II.  L.  Dunn  r.  Sayles,  Id.  (iSf);  Doe  d.  Mar- 

Cas.  348;  Dugdale  r.  IJohcrtson,.']  K.  qnis  of   Bute  v.  (luest,  IH  M.  &  W. 

&  J.  G9r>;  Smith  ,:  Darby,  42  L.  .1..  KIO;  Smith  r.  Mayor,  &c.  of  Harwich, 

Q.  B.  140;  Eadon  »•.  Jeffccxrk,  42  L.  2  C.  B.,  N.  S.  O'A  ;  Sharp  v.  Water- 

.1.,  Ex.  W  ;  in  the  last  of  which  cases  house,  7  E.  &  B.  816. 
it  was  held   that   wlieii   tlie  owner  of 

2H8 


Ch.  V.  S.  10.]       OF   EXCEPTIONS   AND   RESERVATIONS.  *17T 

*  A  recital  in  a  deed  may  amount  to  a  covenant  [*177] 
where  it  ap[)ears  to  be  the  intention  of  the  parties 
that  it  should  do  so  (/c),  and  upon  such  implied  covenant  an 
action  of  covenant  may  be  maintained  (I}. 


Sect.  10.  —  Of  Uxcejjtioiis  and  Reservations. 

Distinction  between  exception  and  reservation.  —  An  excep- 
tion relates  to  some  existing  component  part  of  the  thing 
demised,  vs^hich  is  capable  of  being  severed  or  distinguished 
from  it:i  but  a  reservation  is  properly  of  some  right  or 

{k)  Lay  v.  Mottram,  19  C.  B.,  N.  S.  &  J.  105 ;  Saltoun  v.  Houstoun,  1  Bing. 

479.  4.33 ;  Farrall  v.  Hilditch,  5  C.  B.,  N. 

(/)  Sampson  v.  Easterby,  9  B.  &  C.  S.  840. 
505 ;  s.  c,  in  error,  6  Bing.  644 ;  1  C. 

1  Exceptions.  —  Must  be  part  of  thing  granted,  must  be  of  something 
that  already  exists,  and  something  that  can  be  severed  from  the  thing  demised 
{per  McCoun,  J.,  in  Maynard  v.  Maynard,  4  Edw.  Ch.  (N.  Y.)  711,  714)  ;  Doe 
d.  Bennet  v.  Murdock,  4  Pugs.  &  Bur.  (N.  B.)  317  (east  half  of  land  demised, 
the  exception  being  introduced  by  the  words  "reserving")  ;  Fort  r.  Brown,  46 
Barb.  (N.  Y.)  366,  370  (chamber  and  bedroom)  ;  Elwes  v.  Brigg  Gas  Co.,  33 
Ch,  D.  662,  570  {per  Chitty,  J.,  "all  mines  'and  minerals,  and  all  water 
courses,"  &c.)  ;  Jackson  v.  Lawrence,  11  Johns.  (N.  Y.)  191  (mill's  seats). 

Construction  of  exceptions;  form,  &c.  —  The  following  clause  consti- 
tutes an  exception,  viz. :  "  saving  and  reserving,  nevertheless,  for  his  own  use 
the  coal  contained  in  said  price  "  with  ingress  and  egress,  &c.  Whitaker  v. 
Brown,  46  Penn.  St.  197. 

In  Baker  v.  McDowell,  3  W.  &  S.  (Pa.)  358,  360,  a  provision  "  excepting 
and  reserving  the  one  half  of  all  iron  ore,"  &c.,  was  evidently  considered  an 
exception,  because  it  was  "  parcel  of  the  soil,"  though  Gibson,  C.  J.,  speaks  of 
it  as  a  reservation. 

Exceptions  are  frequently  introduced  by  the  word  "  reserving."  In  Shoen- 
berger  v.  Lyon,  7  W.  &  S.  184,  194,  there  was  a  clause  reserving  iron  ore  held 
void  because  m  large  as  the  grant ;  and  Gibson,  C.  J.,  says  :  V  A  reservation 
being  an  exception  out  of  the  thing  granted,  keeps  the  part  reserved  from 
passing,"  &c.     This  language,  of  course,  could  only  apply  to  an  exception. 

In  Whitaker  v.  Brown,  46  Pa.  St.  197,  198,  a  clause  saving  and  reserving 
coal,  in  a  parcel  of  land  with  free  ingress  and  egress,  was  held  to  constitute  an 
exception. 

In  Bush  V.  Coles,  12  Mod.  24,  the  clause,  "excepting  two  rooms  and  free 
passage,  ingress,  egress,  and  regress  to  and  from  them,"  was  held  to  include 
both  an  exception  and  a  reservation.  It  was  an  exception  of  the  rooms  and  a 
reservation  of  the  passage-way. 

In  Case  v.  Haight,  3  Wend.  (N.  Y.)  632,  635,  636,  where  the  owner  of  the 
bed  of  a  stream  and  of  one  bank  conveyed  to  the  owner  of  the  otlier  bank  half 
the  bed  of  tlie  stream,  reserving  the  right  to  build  dam  on  both  sides,  it  was  held 

289 


*177  THE   LEASE.  •      [Ch.  Y.  S.  10. 

not  to  be  a  good  exception,  but  that  it  might  be  sustained  under  an  implied 
covenant. 

In  Maynard  v.  Maynard,  4  Edw.  Ch,  (N.  Y.)  711,  714,  715,  the  following 
clause,  "e.xcepting  and  reservnig  to  my  three  daugliters,  H.,  E.,  &  R.,  a  right 
of  living  on  the  said  before-mentioned  premises  as  heretofore,  so  long  as  they 
shall  respectively  remain  single,"  was  held  to  constitute  neither  an  exception 
nor  a  reservation,  but  the  court  held  that  it  might  be  enforced  under  the  statute. 
It  was  not  an  exception  because  it  was  not  a  part  of  thing  demised,  nor  a  res- 
ervation because  not  in  favor  of  the  grantor. 

Exceptions  are  to  be  construed  most  strongly  against  the  grantor.  In  Prov- 
ost V.  Calder,  2  Wend.  (N.  Y.)  517,  524,  a  stream  of  water  was  excepted;  but 
court  held  the  exception  limited  to  the  special  purposes  for  which  it  was 
intended  to  be  used,  Jackson  c.  Gardner,  8  Johns.  (N.  Y.)  394,  406. 

Exceptions  which  are  indefinite  are  void.  For  example  :  a  covenant  "  to 
let  the  lessor  have  what  land  he  and  his  brothers  might  want  for  cultivation" 
cannot  be  enforced  in  favor  of  any  one.     Chipman  v.  Emeric,  5  Cal.  49,  51. 

An  exception,  otherwise  void,  for  uncertainty  may  sometimes  be  made  cer- 
tain by  subsequent  acts  of  parties.  Thompson  v.  Gregory,  4  Jolms.  (N.  Y.) 
81.  If  grantor  except  the  streams  of  water  with  the  right  of  erecting  mill 
dams  and  all  such  parts  of  the  land  as  sliall  be  overflowed,  for  the  use  of  the 
mill,  the  exception  is  inoperative  until  the  mills  and  dams  are  built.  Provost 
V.  Calder,  2  Wend.  (N.  Y.)  517,  524,  545. 

In  Noble  v.  Bosworth,  19  Pick.  (IMass.)  314,  it  was  held  that  a  parol  agree- 
ment to  except  fixtures  could  not  control  tiie  instrument  in  writing. 

Grooving  crops.  —  The  ordinary  rule  is  that  a  deed  of  land  without 
reserve  passes  the  growing  crops,  Crews  v.  Pendleton,  1  Leigh  (Va.)  297  ; 
Steele  v.  Farber,  37  Mo.  71  ;  Baird  v.  Brown,  28  La.  An.  842  ;  or  a  devise, 
Pratte  v.  CofTman's  Ex'r,  27  Mo.  424.     See  ante,  Chap.  V.,  sec.  5,  notes. 

It  has  been  held  in  some  cases  that  growing  crops  may  be  excepted  or 
reserved  by  parol,  even  though  the  lease  or  deed  is  in  writing,  Younians  v. 
Caldwell,  4  Ohio  St.  71;  Baker  v.  Jordan,  3  Id.  438;  because  thereby  con- 
verted into  personalty,  and  a  distinction  has  been  made  between  cases  where 
the  crops  were  to  be  immediately  severed,  and  cases  where  they  were  to  remain 
indefinitely,  Mcllvaine  v.  Harris,  20  Mo.  457. 

There  are  other  cases  in  which  it  has  been  lield  that  parol  reservations  are 
repugnant  to  the  deed.  Brown  v.  Tiiurston,  56  Me.  126  ;  Pattison  v.  Hull,  9 
Cow.  (N.  Y.)  747,  754 ;  Austin  v.  Sawyer,  Id.  39  (though  where  parties 
exclianged  farms  orally,  reserving  each  his  growing  crops,  it  was  held  tliat 
the  crops  did  not  pass  by  the  deeds). 

It  is  established  by  the  weight  of  authority,  that  a  prior  oral  transfer  of 
such  crops  as  are  fructus  industriales,  whether  mature  or  immature,  will  pass 
title  to  them  as  against  subsequent  deed.     See  ante. 

Crops  mny  be  reserved  by  a  clause  in  the  lease,  Jordan  v.  Staples,  57  Me. 
352;  Smith  v.  Atkins,  18  Vt.  461,  462,  464,465;  and  also  their  use  maybe 
limited,  as  that  hay  shall  be  fed  out  on  place,  Ileald  v.  Build  Ins.  Co.,  Ill 
Mass.  38;  Potter  r.  Cunningham,  34  Me.  192;  Coe  v.  Wilson,  46  Id.  314; 
Lewis  V.  Lyman,  22  Pick.  (Mass.)  437.  A  simple  stipulation  that  lessor  shall 
furnish  sufl^cient  stock  to  eat  up  the  hay,  does  not,  it  seems,  prevent  the  hay 
from  being  liable  to  attachment  as  proj)erty'of  lessee.  Turner  r.  Bachelder, 
17  Me.  257.  It  has  been  held  that  a  lessor  cannot  reserve  the  hay  to  be  cut 
in  a  lease  at  will  so  that  lessee's  creditors  cannot  attach  it.  Bailey  v.  Fille- 
brown,  9  Me.  12;  Buttcrfield  i-.  Baker,  5  Pick.  (Mass.)  522. 

290 


Ch.  V.  S.  10.]       OF   EXCEPTIONS   AND    RESERVATIONS.  *177 

profit,  to  arise  from  the  subject  of  the  demise,  which  had 
previously  no  separate  existence  (m).^  A  right  of  way 
reserved  to  the  lessor  by  the  lease,  over  the  lands  demised, 
is  not  strictly  an  exception  or  a  reservation,  being  neither 
parcel  of  the  thing  demised  nor  issuing  out  of  it,  but  is  in 
strictness  of  law  an  easement  newly  created  by  way  of  grant 
from  the  lessee  (w).^  But  where  a  lease  was  made  of  lands, 
except  and  always  reserved  out  of  the  demise  unto  the  lessor 
all  timber  trees,  &c.,  and  also  except  and  reserved  all  royal- 
ties whatsoever  to  the  premises  belonging  or  in  anywise 
appertaining,  it  was  held,  that  this  was  an  exception  or 
reservation,  and  was  not  pleadable  as  a  grant  (o). 

Exception  usually  construed  in  favour  of  lessee.  —  An  excep- 
tion, being  the  act  and  words  of  the  lessor,  is  usually  taken 
strictly  against  him  (p).  But  where^  a  lease  contained  an 
exception  in  favour  of  the  lessor  of  the  mines  and  quarries 
under  the   demised  property,  with  full  power  to  win  and 

(m)  4  Jarm.  Free.  815  (8rd  ed.).  (o)  Pannell  i-.  Mill,  3  C.  B.  625. 

(n)  Durham  and  Sunderland  R.  Co.  (/>)  Shep.  Touch.  77. 

V.  Walker,  2  Q.  B.  940. 

1  Reservations.  —  "A  reservation  is  always  of  something  issuing  or  com- 
ing out  of  the  thing  granted,  and  not  a  part  of  the  thing  itself  "  {per  Johnson, 
J.,  in  Bridger  v.  Pierson,  1  Lans.  (N.  Y.)  481,  483). 

A  reservation  cannot  be  made  in  favor  of  any  one  but  the  grantor.  Mit- 
cliell  V.  Cantrill,  37  Ch.  D.  5H.  A  reservation  of  right  to  obstruct  ancient 
lights,  by  building  on  adjoining  lot  does  not  prevent  lessee  from  acquiring 
prescriptive  right  against  lessee  of  adjoining  close.  Ives  v.  Van  Auken,  34 
Barb.  (N.  Y.)  50(5.  Reservation  of  "  a  privilege  in  a  well  for  the  lots  owned 
by  "  other  parties  is  void.  Borst  v.  Empie,  5  N.  Y.  33,  38  {per  McCoun,  J.)  ; 
Jackson  v.  Swart,  20  Johns.  (N.  Y.)  85,  87  (though  in  this  case  the  reserva- 
tion was  enforcible  as  a  covenant  to  stand  seized,  &c.). 

A  lessor  may  reserve  a  lien  upon  demised  machinery.  Metcalfe  v.  Fos- 
dick,  23  Ohio  St.  114. 

A  reservation  of  an  option  to  take  bricks  to  be  made  at  demised  brick 
yard,  in  lieu  of  rent,  does  not  pass  title  to  the  brick  until  possession  is  taken. 
Wait  Appt.,  7  Pick.  (Mass.)  100. 

2  Regrants  of  easements,  &c.  —  Burr  v.  ]Mills,  21  Wend.  (N.  Y.)  290 
293,  294  (riglit  to  How  granted  land  was  reserved  or  regranted  to  grantor). 
Atkins  II.  Bordman,  2  Met.  (Mass.)  457  (a  right  of  way). 

A  right  of  way  seems  more  properly  a  regrant  than  an  exception  or  reser- 
vation. Lord  Dynevor  v.  Tennant,  13  App.  Cas.  279,  affmng.  33  Ch.  D.  420. 
Provision  that  nothing  in  lease  should  prevent  lessors,  "  their  heirs  or 
assigns,"  from  using  the  land  demised,  or  granting  waj'  leaves  over  it, 
operates  as  a  covenant  to  them  as  owners  of  the  reversion  of  the  demised 
premises,  not  as  owners  of  the  adjoining  premises. 

291 


*178  THE  LEASE.  [Ch.  V.  S.  10. 

work,  and  also  with  free  way-leave  and  passage  to,  from,  and 
along  the  same ;  and  the  lessor  covenanted  in  using  the 
excepted  rights  to  do  as  little  damage  to  the  soil  as  possible : 
it  was  held,  that  the  lessor  was  entitled  to  the  absolute  use 
of  an  underground  right  of  way  and  not  merely  to  a  right 
restricted  to  the  purpose  of  working  the  mines  under  the 
demised  premises ;  but  that  he  was  not  entitled  so  to  work 
the  reserved  mines  as  to  let  down  the  surface  (g-).  Where  a 
railway  company  excepted  and  reserved  out  of  a  demise  of 
land  a  patent  slip  therein,  and  the  machinery  connected 
therewith,  with  free  access  thereto  "  for  themselves,  their 
successors  and  assigns,  officers,  servants,  and  workmen : "  it 
was  held  that  a  licensee  of  the  company  might  justify  using 
the  slip  (/•).  It  has  been  held,  too,  in  a  suit  for  spe- 
[*178]  cific  performance  of  an  *  agreement  for  a  lease,  where 
a  rector  agreed  to  let  a  farm,  except  thirty-seven 
acres  (not  saying  which),  that  the  rector  had  the  right  to 
select  which  thirtj'-seven  acres  should  not  be  included  in  the 
lease  (s). 

What  things  must  concur  in  an  exception.  —  "  In  every  good 
exception,"  it  is  said  in  Sheppard's  Touchstone,  "  these  things 
must  always  concur :  1,  the  exception  must  be  by  apt  words 
'  saving  and  excepting,'  or  the  like  (?)  :  2,  it  must  be  a  part 
of  the  thinor  demised,  and  not  of  some  other  things :  3,  it  must 
be  only  part  of  the  thing,  and  not  all :  4,  it  must  be  such  a 
thing  as  is  severable  from  the  premises  demised,  and  not  of 
an  inseparable  incident :  5,  it  must  be  of  such  a  thing  as  he 
who  doth  accept  may  have,  and  which  properly  belongs  to 
him  :  6,  it  must  be  certainly  or  sufficiently  described  and  set 
down  "  (m). 

If  a  man  be  possessed  of  a  new  house  and  an  old  house, 
and  make  a  lease  with  an  excep'tion  of  the  new  house  for  the 
use  of  the  lessor  when  he  pleases  to  reside  there,  and  at 
other  times  for  the  use  of  the  lessee,  the  new  house  is  well 

(7)  Proud   V.  Bate8,  34  L.  J.,  Ch.  Sed  quwre  ;  see  Dann  i;.  Spurrier,  3  Ji. 

406;  11  Jur.,  N.  S.  441.  &  T.  300. 

(r)  Mitcalfe  v.  Westaway,  17  C  B.,  (/)  Co.  Lit.  47a. 

N.  S.  658;  34  L.  J.,  C.  P.  114.  (m)  Sliep.    Touch.    (7th     ed.)    by 

(s)  Jenkins  v.  Green,  27  Beav.  437  ;  Preston,  p.  78 ;  Dorrell  v.  Collins,  Cro. 

28  L.  J.,  Ch.  817,  per  Uomilly,  M.  U.  Eliz.  0. 

292 


Ch,  V.  S.  10.]  OF   EXCEPTIONS    AND    RESERVATIONS.  *179 

excepted ;  and  such  exception  is  not  avoided  by  the  words 
"  at  all  times  to  be  used  by  the  lessee,  when  the  lessor  doth 
not  dwell  there ; "  for  that  sentence  doth  not  enure  as  an  ex- 
ception out  of  an  exception  (which  sets  the  matter  at  large), 
but  only  as  a  declaration  of  the  lessor's  intention  in  making 
the  exception  ;  —  the  latter  words,  however,  make  the  lessee 
tenant  at  will  (x^.  So,  if  a  man  lease  his  houses,  excepting 
his  new  house,  during  the  term,  this  exception  is  good :  but 
if  he  except  it  during  life,  it  is  void ;  for  the  words  "  during 
life "  qualify  the  exception,  and  show  his  intent  that  the 
house  shall  not  be  excepted  during  the  whole  term,  and  so 
it  is  void. 

Exception  of  trees.  —  A  clause  in  a  lease  purporting  to 
reserve  underwoods  and  underground  produce,  enures  not  as 
a  reservation,  but  as  an  exception  (//).  A  lease  of  lands 
excepted  all  timber,  timber  trees  and  other  trees,  &c.,  bushes 
and  thorns,  other  than  such  bushes  and  thorns  as  should  be 
necessary  for  the  repairs  of  the  fences  ,  the  lessee  covenanted 
to  keep  fences  in  repair,  and  the  lessor  covenanted  to  find 
and  provide,  if  growing  on  the  premises,  rough  timber,  stakes 
and  bushes :  it  was  held,  that  the  provision  as  to  bushes  and 
thorns  necessary  for  repairs  was  not  an  exception  out  of  an 
exception,  but  that  all  trees,  bushes  and  thorns  were  excepted 
out  of  the  demise,  whether  part  of  a  fence  or  not,  or  whether 
necessary  for  repairs  or  not  (z).  An  exception  of  "all  the 
wood"  will  be  an  exception  of  the  soil  whereon  the  wood 
grows  (a).  In  like  manner,  if  all  the  underwood 
and  copse  would  be  *  excepted,  the  land  will  also  [*179] 
be  excepted,  unless  it  clearly  appear  that  it  was 
merely  the  intention  of  the  parties  to  except  only  the  wood 
itself  (6).  But  where  "  timber  trees  "  are  excepted,  the  soil 
in  which  they  grow  will  not  be  covered  by  the  exception  (<;), 
nor  will  it  where  a  tenement  described  as  "  all  timber  trees, 
wood,  underwood,  &c.,"  are  excepted  (d~).    It  will  be  usually 

(r)  Oudlip  V.  Eundall,  3  Salk.  156.  (6)  Whistler  v.  Paslow,  supra  ;  Pin- 

(^)  Doe  d.  Douglas  v.  Lock,  2  A.  comb  v.  Thomas,  Cro.  Jac.  624. 
&  E.  705.  (c)  Whistler   v.  Paslow,  Cro.  Jac. 

(z)  Jenney  v.  Brook,  G  Q.  B.  323.  487. 

(a)  Ive    V.    Sams,    Cro.    Eliz.  521;  (</)  Leigh  y.  Heald,  1  B.  &  Ad.  622. 

Whistler  i'.  Paslow,  Cro.  Jac.  487. 

293 


*179  THE  LEASE.  [Ch.  V.  S.  10. 

not  difficult  to  collect  from  the  words  used  whether  the 
exception  was  intended  to  extend  to  the  soil  or  only  to  the 
trees,  the  more  generic  expressions  pointing  to  the  soil,  and 
the  more  specific  to  the  trees.  A  parol  demise  of  land, 
reserving  to  the  landlord  '*  all  the  hedges,  trees,  thorn 
bushes,  fences,  with  lop  and  top,"  operates  as  a  licence  to 
enter  the  land  for  the  purpose  of  cutting  and  carrying  away 
the  trees  (e).  Where  a  lessee  for  life  made  a  lease  for  years, 
excepting  the  wood,  underwood  and  trees  growing  upon  the 
land,  it  was  held  a  good  exception,  although  he  had  no  inter- 
est in  them  but  as  lessee  ;  because  he  remained  always  ten- 
ant, and  was  chargeable  in  waste  —  wherefore  to  prevent  it 
he  might  make  the  exception  :  but  if  a  lessee  for  years  assign 
over  his  term  with  such  an  exception,  it  is  a  void  excep- 
tion  (/). 

Apple-trees.  —  An  exception  of  "  all  trees,  woods,  coppice- 
wood  grounds,  of  what  kind  or  growth  soever  "  (^),  or  of 
"  all  timber  trees  and  other  trees,  but  not  the  annual  fruit 
thereof,"  does  not  include  apple-trees  (A). 

"  Reservation "  of  game.  —  A  clause  purporting  to  reserve 
and  except  to  the  lessor  the  power  of  hunting,  &c.,  over  the 
demised  premises,  ensures  as  a  grant  from  the  lessee  to  the 
lessor  —  a  grant  of  a  profit  a  prendre.  It  is  not  in  law  either 
a  reservation  or  exception  (i).  A  demise  of  lands,  excepting 
and  reserving  all  royalties^  with  a  clause  for  the  lessor  to  be 
allowed  to  prosecute  actions  against  persons  trespassing  for 
the  purpose  of  hunting,  &c.,  does  not  amount  to  a  grant  by 
the  lessee  of  a  liberty  for  the  lessor  to  enter  for  the  purpose 
of  pursuing,  killing,  and  taking  birds  of  warren  (Ji).  In  a 
demise  of  a  mansion-house  and  land,  with  the  sole  licence  of 
sporting  over  all  other  lands  of  the  lessor's  subject  to  the 
liberty  for  each  tenant  on  his  farin  to  kill  rabbits  thereon, 

(e)  Hewitt  v.  Islmm,  7  Exch.   77;  (i)  Doe  d.  Douglas  v.  Lock,  2  A.  & 

Liforil's  case,  11  Co.  U.  51  b.  E.  705.  74.'?;  Wicklmm  r.  Iluwker,  7 

(/)  Bacon    v.    Gyrling,   Cro.    Jac.  M.  &  W.  10.'];  Ewart  i-.  Graliani,  7  H. 

296.  L.  Cas.3.33 ;  Hall  on  Profits  a  Prendre, 

(y)  London  i;.  Southwell,  Hoi.. . 304;  p.   .'524.     And    see  post,   Ch.    XVIII. 

Wyndliani  v.  Way,  4  Taunt.  ."Jlf!.  Sect,  (i,  "  Game,"  &c. 

(/<)  BuUen  v.  Denning,  5  B.  &  C.  (/.)  Pannell  v.  Mill,  3  C.  B.  G25. 

842.  I 

294 


Ch.  V.  S.  10.]        OF   EXCEPTIONS       ^-TD   llESERVATIONS.  *180 

the  exception  cKtends  not  only  l,o  farms  existing  at  the  thne 
of  the  demise,  but  also  to  other  lands,  as  plantations,  sub.^e- 
quently  let  as  farms  (/). 

Exception  of  minerals.  —  An  exception  of  minerals  in- 
cludes stones  got  from  quarries  (^0'  ''^^^^  ^^^^  everything 
that  is  necessary  for  working  the  mines  or  quarries, 
*  including  way-leave  for  carrying  away  the  stone  or  [*180] 
minerals  (n)  ;  but  a  reservation  of  "all  mines  and 
minerals,  sand,  quarries  of  stone,  brick-earth,  and  gravel 
pits,"  in  a  farming  lease  does  not  prevent  the  lessee  from 
selling,  in  accordance  with  a  custom  of  the  country,  flints 
turned  up  by  the  lessee  in  course  of  ploughing  (o). 

The  reservation  of  a  full  power  to  work  mines  does  not 
include  the  power  of  working  so  as  to  let  down  the  sur- 
face (jo). 

"  Mines  and  minerals."  —  The  legal  meaning  of  the  expres- 
sion "mines  and  minerals,"  is  "every  substance  >vhich  can 
be  got  from  underneath  the  surface  of  the  earth  for  the  pur- 
pose of  profit,  unless  there  be  something  in  the  context  or  in 
the  nature  of  the  transaction  between  the  parties  to  give  it  a 
more  limited  meaning"  (^). 

Right  to  take  brick-earth.  —  It  seems  that  a  building-lessee, 
notwithstanding  a  reservation  of  minerals  so  framed  as  to 
include  brick-earth,  may  dig  foundations  and  convert  the 
brick-earth  for  the  purpose  of  building,  but  for  the  purpose 
of  building  only,  and  not  for  the  purpose  of  carrying  on  the 
trade  of  brick-making  (r). 

Exception  of  water.  —  Where  there  was  a  lease  of  certain 
lands,  together  with  all  houses,  water-courses,  &c.,  excepting 
a  "  water-course  flowing  or  descending  from  "  a  certain  spot, 
through  a  meadow,  it  was  held  in  the  particular  case  to  be 
an  exception  of  the  water  itself,  not  of  the  channel  through 

(/)  Newton  v.  Wilmott,  8  M.  &  W.  373 ;  32  W.  R.  40,  affirming  decisions 

711.  below,  21  Ch.  D.  18. 

(m)  Mieklethwait  v.  Winter,  6  Ex.  (p)  Jeffryes  i'.  Evans,  34  L.  J.,  C. 

644;  20  L.  J.,  Ex.  313.  P.  261 ;  19  C.  B.,  N.  S.  246. 

(n)  Cardigan  v.  Armitage,  2  B.  &  C.  (q)  Hext  v.  Gill,  L.  R.,  7  Ch.  699. 

197.  (r)  Robinson   v.   Milne,  53   L.   J., 

(«)  Tucker  v.  Linger,  L.  R.,  8  App.  Ch.  1070,  per  North,  J. 
Cas,  688;  52  L.  J.,  Ch.  941 ;  49  L.  T. 

295 


*181  THE   LEASE.  [Cn.  V.  S.  11. 

which  it  flowed  (s).  Where  there  was  a  demise  of  a  mill 
and  a  stream  of  water,  except  so  much  of  the  water  as  should 
be  sufficient  for  the  supply  of  persons  whom  the  lessor  had 
alread}"  contracted  with  or  thereafter  should  contract  to 
supply,  provided  that  such  a  quantity  should  be  left  as 
should  be  sufficient  to  supply  the  mill  for  twelve  hours  a 
day :  it  was  held,  that  this  was  not  an  absolute  undertak- 
ing to  supply  water  to  work  the  mill  twelve  hours  a  day,  but 
that  it  was  a  demise  of  the  mill  as  the  water  was  flowing  at 
the  time  of  the  demise  (f). 


Sect.  11.  —  Provisoes  mid   Conditions. 

Nature  of  conditions.  — •  The  terms  "  proviso  "  and  "  condi- 
tion "  are  synonymous,  and  signify  some  quality  annexed  to 
a  real  estate,  by  virtue  of  which  it  may  be  defeated,  enlarged 
or  created  upon  an  uncertain  event.  Such  qualities  annexed 
to  personal  contracts  and  agreements  are  generally 
[*181]  called  *  conditions  (m).  A  proviso  or  condition  of 
re-entry  may  be  inserted  in  an  agreement  for  a  lease 
not  under  seal  (a;).  It  will  even  form  part  of  a  new  implied 
tenancy  from  year  to  year  upon  the  terms  of  a  previous 
lease  or  agreement  (?/),  and  could  be  taken  advantage  of  in 
case  of  entry  and  payment  of  rent  upon  the  ordinary  agree- 
ment for  a  lease. 

Conditions  precedent  or  subsequent.  —  Conditions  are  either 
precedent  or  subsequent.^     Where  a  condition  must  be  per- 

(s)  Doe   <L   Earl   of   Egremont   v.  (x)  Ilayne  v.  Cuinmings,  16  C.  B., 

Williams,  11  Q.  B.  688.  N.  S.  421. 

(0  Blatchfonl    v.    Mayor,    &c.    of  (//)  Thomas  v.  Taokcr,  1  H.  &  N. 

Plymouth,  .'3  Bing.  N.  C.  601.  660. 

(«)  Bac.  Abr.  tit.  Condition. 


'Conditions. — Conditions  are  either  exj)ress  or  implied,  general  or 
special,  piccciient  or  subsequent.  A  condition  general  terminates  tenancy 
ujK)!!  entry.  A  condition  special  merely  authorizes  entry  to  take  profits  and 
hold  premises  as  security.  A  condition  can  only  be  reserved  for  benefit  of 
the  grantor  and  his  heirs,  not  for  a  stranger.     4  Kent's  Com.  sees.  1'21-127. 

It  is  diKlinguishe<l  from  a  limitation  in  that  the  latter  marks  the  period  or 
event  which  alisolutcly  dctcrniines  the  estate  without  entry,  while  a  condition 

29G 


Cii.  V.  s.  11.]  .rriovisoF:s  and  conditions.  *181 

formed  before  the  estate  can  commence,  it  is  called  "  a  con- 
dition precedent ; "  but  where  the  effect  of  the  condition  is 
either  to  enlarge  or  defeat  an  estate  already  created,  it  is 
then  called  "a  condition  subsequent "  (2). 

Construction  of  conditions.  —  Conditions  as  well  as  cove- 
nants are  to  be  construed  according  to  the  real  intentions  of 
the  parties  (a).  What  is  or  is  not  a  condition  precedent 
depends  merely  not  on  technical  words,  but  upon  the  plain 
intention  of  the  parties,  to  be  deduced  from  the  whole  instru- 
ment (b}.  The  court  will  not  decide  as  to  the  meaning  of 
an  insensible  condition  or  proviso  for  re-entry  (c). 

By  what  instrument  made.  —  A  condition  may  be  contained 

(c)  Cruise's  Dig.  XII.  tit.  1,  s.  6 ;  1  (c)  Doe  d.  Wyndham  v.  Carew,  2 

Inst.  16  a,  237  a,  n.  1.  Q.  B.  317  ;  Doe  d.  Darke  v.  Bowditch, 

(a)  Cole  Ejec.  407.  8  Q.  B.  973. 

(6)  Roberts  v.  Brett,  11  H.  L.  Cas. 
337;  34  L.  J.,  Cii.  241. 

may  possibly  determine  it  meantime,  only,  however,  after  entry  or  claim. 
Same,  sec.  126,  127. 

A  covenant  may  be  a  condition  precedent.  Ordinarily,  however,  a  cove- 
nant is  distinguished  from  a  condition  in  that  it  is  not  a  limitation  or  qualifi- 
cation upon  the  estate.  Hilsendegen  v.  Scheich,  55  Mich.  (684  that  rents 
shall  be  paid  in  advance  is  not  a  condition  unless  the  parties  so  intended)  ; 
Langley  v.  Ross,  55  Mich.  163  (a  covenant  to  pay  taxes  with  no  provision  of 
re-entry  is  a  mere  covenant)  ;  Tallman  r.  Coflin,  4  N.  Y.  134  (lessor's  cove- 
nant to  pay  for  improvements  is  not  a  condition  but  a  mere  covenant). 

A  covenant  with  clause  of  re-entry  for  breach  constitutes  a  condition 
qualifying  the  title,  Jackson  v.  Topping,  1  Wend.  (N.  Y.)  388,  but  not  other- 
wise. 

A  condition  can  only  be  reserved  for  the  benefit  of  the  grantor  or  lessor 
and  his  heirs.  Strangers  cannot  take  advantage  of  it.  4  Kent's  Com. 
(13th  ed.)  sec.  127 ;  Porter  v.  Merrill,  124  Mass.  534,  541 ;  Shuniway  v.  Col- 
lins, 6  Gray  (Mass.)  227,  230;  Welch  v.  Silliman,  2  Hill  (N.  Y.)  491,495; 
NicoU  V.  N.  Y.  &  Erie  R.  R.  Co.,  12  Barb.  (N.  Y.)  460. 

In  a  lease  of  realty  and  personalty  covenant,  that  lessee  shall  raise  year- 
lings to  be  kept  upon  pla(;e  and  divided  at  end  of  term,  is  a  condition  limit- 
ing lessee's  absolute  right  till  end  of  term.     Briggs  v.  Oaks,  26  Vt.  138,  145, 146. 

Provision,  that  certain  personal  property,  as  stock  and  fanning  utensils, 
to  value  of  §1000,  shall  be  kept  on  premises  and  remain  property  of  lessor 
as  security  to  end  of  term,  qualifies  the  title,  and  is  valid  against  lessees, 
attaching  creditors.     Paris  v.  Vail,  18  Vt.  277. 

'  A  condition  precedent  will  prevent  the  vesting  of  title  until  it  has  been 
performed.  Andis  v.  Personett,  108  Ind.  202.  It  may,  however,  though  in  a 
sealed  lease,  be  waived.     Long  v.  Stafford,  103  N.  Y.  274. 

A  condition  subsequent,  to  be  performed  by  lessor,  must  in  order  to 
defeat  the  lessee's  title  be  performed  bond  fide.     Trout  v.  Perciful,  105  Ind.  532. 

297 


*182  THE  LEASE.  [Ch.  V.  S.  11. 

in  the  same  deed  or  indorsed  upon  the  deed ;  or  may  be  con- 
tained in  another  deed  executed  the  same  day  (c7)  ;  a  condi- 
tion indorsed  upon  a  lease  before  the  sealing  and  delivery  is 
of  equal  force  with  a  condition  written  within  the  deed  (e). 

By  what  words  created.  —  Conditions  are  most  properly 
created  by  using  the  word  "condition,"  or  the  words  "on 
condition ;  "  but  the  word  commonly  and  as  effectually  made 
use  of,  is,  that  of  "provided"  (/).  The  w^ords  "covenant" 
and  "  condition,"  when  used  in  an  agreement,  do  not  neces- 
sarily mean  a  covenant  under  seal,  or  a  condition  in  the 
strict  legal  sense  of  the  word,  but  may,  in  order  to  effectuate 
the  intention  of  the  parties,  be  construed  to  mean  "  contract 
or  stipulation  "  (^).  If  a  proviso  or  condition  have  dejDend- 
ence  upon  another  clause  of  the  deed,  or  if  the  words  of 
the  lease  be  to  compel  the  lessor  to  do  something,  then  it  is 
not  a  condition,  but  a  convenant  only ;  as  if  there  be  in  the 
deed  a  covenant  that  the  lessee  should  scour  the  ditches,  and 
then  these  words  follow,  "provided  that  the  lessor  shall 
carry  away  the  earth."  If  the  words  run  thus  :  "  provided 
always,  and  the  lessee,  &c.,  doth  covenant,  &c.,  that  neither 
he  nor  his  heirs  shall  do  such  an  act ; "  this  is  both  a 
[*182]  condition  and  a  covenant  (A)  ;  so  if  the  *  words  are 
"  provided  always,  and  it  is  covenanted  and  agreed 
between  the  parties,  that  the  lessee  shall  not  alien,"  this  is 
both  a  condition  and  a  convenant ;  for  it  is  a  condition  by 
force  of  the  proviso,  and  a  covenant  by  force  of  the  other 
words  (i)  A  covenant  by  the  lessor  for  quiet  enjoyment  by 
the  lessee,  his  executors,  administrators  and  assigns,  during 
the  term,  he  or  they  paying  the  rent  thereby  reserved  and 
performing  the  covenants  on  his  and  their  part  contained,  is 
not  a  covenant  subject  to  a  condition  precedent  (A;). 

Condition  or  covenant.  —  Where  in  an  agreement  to  demise 

(d)  Com.    Dig.    tit.   Condition  (A.  (;/)  Ilnyne  v.  Cunimings,  16  C.  B., 
9).  N.  S.  421. 

(e)  Griffin    v.   Stanhope,  Cro.  .Tac.  (/()  Ship.  Touch.  122 ;  Co.  Lit.  140. 
4oO;  Goodnight  d.  Nicholls  v.  Mark,  (/)  Co.  Lit.  103  b. 

4  M.  &  S.  30.  (/  )  Dawson  i^.  Dyer,  Bart.,  5  B.  & 

(/)  Shep.   Touch.    122;    Co.    Lit.       Adol.  584, /-o.sY,  Chap.  XVIL,  Sect.  8 

146.  b ;  and  see  Lock  v.  Furze,  19  C.  B., 

N.  S.  1)6;  L.  K.,  1  C.  l*.  441, 

298 


Cji.  V.  S.  11.]  PROVISOES   AND   CONDITIONS.  *182 

lands  for  a  term  of  years  at  a  certain  annual  rent,  in  which 
there  was  no  clause  of  re-entry,  there  was  a  stipulation  "  that 
in  case  the  said  lessor  should  want  any  part  of  the  said  land 
to  build  or  otlierwise,  or  cause  to  be  built,  then  the  lessee 
shall  give  up  that  part  of  the  said  land  as  should  be  re- 
quested by  the  lessor,  by  his  making  an  abatement  in  pro- 
portion to  the  rent  cliarged ;  and  also  to  pay  for  so  much  of 
the  fence  at  a  fair  valuation,  as  he  should  have  occasion 
from  time  to  time  to  take  away,  by  his  giving  or  leaving  six 
months'  notice  of  what  he  intended  to  do : "  it  was  held, 
that  this  was  merely  a  covenant,  and  not  a  condition  Q). 
But  where  a  proviso  in  a  lease  was,  that  in  case  the  lessor  at 
any  time  shall  be  desirous  of  having  any  part  of  the  land  de- 
livered up  to  him  and  shall  sign  three  months'  notice,  the  les- 
see covenants  to  give  it  up,  and  that  the  lessor  shall  and  may 
take  peaceable  and  quiet  possession,  paying  a  fair  compensa- 
tion, and  the  rent  being  reduced  at  a  certain  rate  per  acre, 
it  was  held  not  to  be  a  covenant  merely  (w).  By  an  agree- 
ment for  a  lease  it  was  stipulated  and  conditioned,  that  A. 
should  not  assign,  transfer  or  underlet  any  of  the  premises, 
otherwise  than  to  his  wife,  child  or  children  :  it  was  held, 
that  by  such  clause  a  condition  was  created  for  the  breach 
of  which  the  lessor  might  maintain  an  ejectment  (n).  But 
mere  words  of  agreement,  such  as  "  the  tenant  hereby  agrees 
that  he  will  not  underlet  the  premises  without  the  consent 
in  writing  of  the  landlord "  (o),  do  not  constitute  such  a 
condition  (p). 

A  condition  that  assignments  should  be  left  with  the  soli- 
citor of  the  ground  landlord  has  been  held  to  be  a  cove- 
nant Of). 

"Running  with  the  land." — A  condition  which  does  not 
concern  the  thing  demised,  but  is  only  collateral,  does  not 

(/)  Doe    d.    Wilson    v.    Phillips,   2  (o)  Shaw  v.  Coffin,  14  C.  B.,  N.  S. 

Bing.  13 ;  9  Moo.  46  ;  Doe  d.  Wilson  372. 

V.  Abel,  2  M.  &  S.  541.  (;>)  Crawley  v.  Price,  L.  R.,  10  Q. 

(m)  Doe  d.  Gardner  v.  Kennard,  12  B.  302  ;  33  L.  T.  203 ;  23  W.  R.  874. 

Q.  B.  244.  {q)  Brooks  v.  Drysdale,  L.  R.,  3  C. 

(n)  Doe  d.  Henniker  v.  Watt,  8  B.  P.  D.  52 ;  37  L.  T.  467  ;  see  ante,  121 

&  C.  308.  (;«). 

299 


*183  THE   LEASE.  [Ch.  V.  S.  12. 

run  with  the  land,  nor  with  the  reversion ;  and  an  assignee 
of  the  lessor  cannot  sue  for  any  breach  of  it  (r). 


[*183]  *Sect.  12.  —  Schedules,  Indorsements^  ^c. 

Schedule  of  fixtures,  furniture,  &c.  —  When  a  house  is  let, 
together  with  fixtures,  furniture  or  other  articles  therein, 
it  is  usual  to  make  a  schedule  or  inventory  of  them,  with 
a  covenant  or  promise  from  the  lessee  to  re-deliver  them  at 
the  end  of  a  term.  Such  covenant  or  promise  Avill  give  the 
landlord  a  better  remedy  (with  clearer  evidence)  than  he 
would  otherwise  have  (s).  The  schedule  or  inventory  is 
generally  written  at  the  foot  or  end  of  the  lease,  or  it  is 
indorsed  thereon,  or  annexed  thereto. 

When  schedule  not  annexed.  • —  Sometimes  by  oversight  or 
mistake  a  schedule  referred  to  in  a  deed  as  annexed  thereto 
is  not  in  fact  annexed  when  the  deed  is  executed.  In  such 
case  the  deed  will  operate  and  take  effect,  so  far  as  n.ay  be, 
without  the  assistance  of  the  schedule  (J^.  But  sometimes  it 
is  insensible  and  inoperative  as  to  part  without  the  aid  of 
the  schedule  (?(). 

How  articles  describe.  —  The  articles  comprised  in  the 
schedule  should  be  specified  in  such  a  manner  as  to  prevent 
all  doubt  as  to  what  was  intended  to  be  included  (x).  When 
they  are  numerous  and  comprise  items  of  small  value,  the 
description  of  the  property  should  be  general  enough  to 
include  all  the  items,  after  which  may  be  added  "the  prin- 
cipal articles  whereof  are  particularly  enumerated  and  de- 
scribed in  the  schedule  hereunder  written,  or  hereunto 
annexed,"  or  to  that  effect  (?/).  But  sometimes  the  sched- 
ule may  be  referred  to  in  such  a  manner  as  to  exclude  any- 

(r)  Stevens  ?-.  Copp,  L.  K.,  4  Ex.  (.r)  Wood  r.Rowcliffo,()  Exch.  407; 

20;  and  see  102,  ante.  Cort  v.  Sagar,  3  H.  &  N.  ;}?();  Ilutch- 

(s)  Dampierw.  I'ole,  4  Exch.  678.  inson  v.  Kay,  23  Beav.  418;  cited  3 

(0  Dyer   r.    Green,    1    Exeh.    71;  H.  &  N.  372;    Baker  v.  Kidiardson, 

Dames  v.  Heath,  3  C  B.  938;  Dam-  0  W.  K.  003;  Walsh  r.  Trevanion,  16 

pier  V.  Pole,  4  Exch.  078.  Q.  B.  733;  Barton  v.  Dawes,  10  C.  B. 

(«)  Weeks  v.  Maillardet,  14  East,  201. 

508 ;  Sellin  v.  I'rice,  L.  K.,  2  Ex.  18'J;  (y)  Dyer  v.  Green,  1  Exch.  71. 
30  L.  J.,  Ex.  93. 

300 


Cii.  V.  S.  12.]  SCHEDULES,    INDORSEMENTS,    ETC.  *184 

thing  not  therein  specified  (z).  A  deed  is  not  avoided  by 
subsequently  annexing  the  schedule  therein  referred  to  (a)  ; 
but  frequently  the  deed  may  be  used  without  the  sched- 
ule (^0- 

When  a  fine  or  premium  is  paid,  a  receipt  for  the  amount 
should  be  indorsed  on  the  lease.  It  may  be  concisely  ex- 
pressed thus  :  — 

Receipt  for  consideration.  —  "Received  of  Mr.  C.  D.  the 
sum  of  pounds  as  within  mentioned."     No  receipt  stamp 

is  necessary  in  addition  to  the  lease  stamp. 

Attestation.  —  The  usual  attestation  clause  should  not  be 
omitted,  especially  when  the  lease  is  granted  in  pursuance 
of  a  power  (c).  Alterations  in  the  deed  should  be  specially 
mentioned  in  the  attestation,  or  marked  in  the  margin  with 
the  initials  of  the  attesting*  witnesses. 

Alterations  indorsed  before  execution.  —  It  sometimes  hap- 
pens that  after  a  deed  has  been  engrossed,  but  before  it  is 
executed,  some  additional  covenant  or  stipulation  is 
agreed  *  on,  wdiich  cannot  conveniently  be  interlined.  [*184] 
In  such  case  it  may  be  indorsed  on  the  lease,  and 
referred  to  in  the  proper  place  thus :  — "  See  back  (A)." 
Memorandums  indorsed  upon  leases,  if  made  previously  to  the 
execution  of  the  lease,  are  considered  in  construction  and 
effect  as  part  of  the  instrument,  although  they  add  to  or 
change  the  provisions  of  the  deed  (jT).  An  indorsement 
upon  a  deed  or  other  alteration  therein  is  taken  to  have  been 
made  before  the  execution  of  the  deed  and  to  be  parcel  of 
it,  in  the  absence  of  proof  to  the  contrary  (e).  It  is  no 
objection  to  a  lease  that  an  alteration  therein  was  made  and 


(2)  Wood  V.  Rowcliffe,  6  Ex.  407 ;  456 ;  Goodright  d.  Nicholls  v.  Mark 

Bake    v.    Richardson,   6    W.   R.  663,  4  M.  &  S.  30 ;  Frogley  i'.  Earl  Love- 

contra.  lace,  1  Johns.  333. 

(a)  West  V.  Steward,  14  M.  &  W.  (e)  Brewster  r.  Kidffell,  Carth.  438  ; 
47.  But  see  Sellin  v.  Price,  L.  R.,  2  Flint  v.  Brandon,  1  Bos.  &  P.,  N.  R. 
Ex.  189,  192;  36  L.  J.,  Ex.  93.  73;  Doe  d.   Tatum    v.  Catamore,  16 

(b)  Dames  v.  Heath,  3  C.  B.  938 ;  Q.  B.  745.  The  presumption  is  the 
Dye  V.  Green,  1  Exch.  71.  otlier  way  with  respect  to  a  will   or 

(c)  22  &  23  Vict.  c.  .35,  s.  12.  codicil ;  Doe  d.  Shallcross  v.  Palmer, 
Id)  Griffin   i'.  Stanhope,  Cro.  Jac.  16  Q.  B.  747. 

301 


*185  THE  LEASE.  [Ch.  V.  S.  13. 

signed,  after  the  lease  was  signed,  but  before  it  was  sealed 
and  delivered  (/). 

Where  after  execution. — A  memorandum  indorsed  upon  an 
instrument  subsequently  to  its  execution,  although  it  refers 
thereto,  is  to  all  intents  a  new  instrument,  and  must  be 
executed  and  stamped  accordingly  (^). 


Sect.  13.  —  Stamjo. 

Stamps  on  leases,  &o.  —  The  stamping  of  leases  and  agree- 
ments for  leases,  which  was,  before  the  1st  of  January,  1871, 
regulated  by  a  number  of  complicated  enactments,  is  now 
regulated  by  the  Stamp  Act,  1871,  (33  &  34  Vict.  c.  97), 
which  came  into  operation  on  the  1st  January,  1871,  from 
which  date  also  the  Inland  Revenue  Repeal  Act,  1870,  (33 
&  31  Vict.  c.  99),  repealed  a  large  body  of  prior  enactments 
on  the  subject,  the  titles  of  which  may  be  seen  on  reference 
to  that  act. 

Such  portions  of  the  Stamp  Act,  1870,  and  of  the  schedule 
thereto  as  bear  upon  the  subject  of  this  work  are  set  out  at 
length  hereafter  (Ji). 

In  case  of  additional  rent.  —  It  may  be  mentioned  here, 
however,  that  by  the  Inland  Revenue  Act,  1876,  (39  &  40 
Vict.  c.  16),  s.  11,  an  instrument  whereby  the  rent  reserved 
by  an}^  other  instrument  chargeable  with  duty  as  a  lease  and 
duly  stamped  is  increased  "shall  not  be  chargeable  with 
stamp  duty,  otherwise  than  as  a  lease  in  consideration  of  the 
additional  rent  theieby  made  payable.*' 

Stamp  depends  on  actual  consideration.  —  Prior  to  the  Stamp 
Act,  1870,  the  ad  valorem  stamp  duty  on  a  lease, 
[*185]  *  or  agreement  for  a  lease,  was  to  be  regulated  by 
the  consideration  appearing  on  the  face  of  it,  al- 
though it  might  not  be  that  which  was  actually  paid  (/),  and 

(/)  Lvlnirn  r.  WarrinfTtnn,!  Stark.  and  as  to  stamping  after  execution, 

K.  162.  and    for   purposes    of    evidence,    see 

(g)  Reed  v.  Deere,  7  R.  &  T.  201  ,  sects.  15-17  of  the  act,  and   ;/px/,  p. 

2  C.  &  P.  624  ;  Hill  r.  Patten,  8  East,  172. 

37:5 ;  French  i-.  Patten,  0  East,  .351  ;  (i)  Duck  v.  Braddyll,  M'CIcl.  217  ; 

Tilsley's  Stamp  L.  3o(»  (2nd  ed.).  13  Price,  465. 

(Ji)  Sec  post,  Appendix  A.  sect.  7; 

302 


Cn.  V.  S.  13.]  STAMPS   ON   LEASES.  *185 

the  ad  valorem  duty  applied  only  to  considerations  passing 
between  the  lessor  and  lessee  (^)  ;  but  both  these  rules  are 
abrogated  by  the  terms  of  the  schedule  to  the  Act  of  1870, 
tit.  "Lease." 

Separate  rents.  —  If  two  distinct  rents  be  reserved,  one  for 
the  house  and  land,  and  another  for  the  furniture  and  fix- 
tures, the  stamp  must  be  sufficient  to  cover  both  (?).  Where 
the  plaintiff  demised  a  slate  pit  at  S.  and  stone  quarries  at 
M.  to  the  defendant  under  an  indenture  of  lease,  to  hold  the 
one  from  Lady-day,  1815,  and  the  other  from  Michaelmas, 
1817,  for  the  several  terms  of  fourteen  years  from  the  respec- 
tive dates  thereof,  at  the  yearly  rent  of  101.  for  the  slate  pit 
and  130/.  for  the  quarries :  it  was  held,  that  one  ad  valorem 
stamp  on  the  aggregate  amount  was  sufficient,  as  the  letting 
must  be  considered  as  one  transaction,  there  being  no  evi- 
dence of  an  intent  by  the  parties  to  defraud  the  revenue  (««)• 
Again,  where  a  lease  contained  a  demise  of  two  separate 
farms,  with  two  habendums  differing  from  each  other,  a  res- 
ervation of  a  separate  rent  in  respect  to  each  farm,  and  sepa- 
rate covenants,  some  applying  to  one  farm  and  some  to  the 
other:  it  was  held,  that  one  ad  valorem  stamp  for  the 
amount  of  both  rents  was  sufficient  (w).  So  also  a  lease  con- 
taining a  demise  of  land,  at  a  certain  rent,  and  of  other  land 
at  the  same  rent  as  was  then  paid  for  it,  but  not  describing 
the  amount,  is  well  stamped  by  one  ad  valorem  stamp,  cal- 
culated upon  the  whole  amount  of  rent  to  be  paid  for  all  the 
lands  (o). 

New  stipulation  after  signature.  —  If  a  contract,  which  is 
signed  by  one  party,  liave,  previously  to  the  signature  of  the 
other,  inserted  in  it  a  new  stipulation,  it  is  entire,  and 
requires  bvit  one  stamp  (p)  :  and  where  an  instrument  con- 
tained in  its  general  terms  a  written  contract  or  demise  to 
several  different  tenants  for  different  estates  at  different 
rents,  set  against  each  signature,  and   one   stamp  only  ap- 

(k)  Boone  v.  Mitchell,  1  B.  &  C.  18.  (n)  Blount    v.    Pearman,    1    Bing. 

(0  Coster  V.  Cowling,  7  Bing.  456.        N.  C.  408;  1  Scott,  55. 
(m)  Boase  v.  Jackson,  3  B.  &  B.  (o)  Parry  i'.  Deere,  5  A.  &  E.  551. 

1S5.  (p)  Knight   v.  Crockford,   1    Esp. 

189. 

303 


*186  THE  LEASE.  [Ch.  V.  S.  13. 

peared  on  the  paper ;  the  court  hekl,  that  it  was  matter  of 
circumstantial  evidence  to  which  contract  such  stamp  shoukl 
be  applied  (c[).  An  agreement  for  a  lease  containing  a  pro- 
vision that  the  lessee  should  give  up  a  farm  at  Michaelmas 
was  held  not  to  require  a  new  stamp  by  the  addition  of  the 
words  "house  and  buildings,"  on  the  ground  that  the  addi- 
tion merely  expressed  what  the  parties  intended  at  first  (r). 
A  new  agreement  of  course  requires  a  new  stamp  (s). 
[*186]  *  It  was  formerly  the  law  that  if  a  lease  in  writing 
contained  a  contract  for  the  purchase  of  goods,  it 
could  not  be  given  in  evidence  to  prove  the  sale  of  the  goods, 
unless  it  had  a  lease  stamp  (f).  The  97th  section  of  the  Act 
of  1870  now  provides  for  this  case,  by  the  enactment  that 
where  part  of  the  consideration  consists  of  goods,  the  value 
of  the  goods  is  to  be  deemed  a  consideration  in  respect  of 
which  the  lease  is  chargeable  with  duty. 

A  lease  with  option  for  lessee  to  purchase  requires  but 
one  stamp  as  a  lease  (it). 

When  a  stamp  is  necessary  in  evidence.  —  A  stamp  is  only 
necessary  where  a  paper  is  used  as  evidence  of  an  agreement 
directly,  and  not  where  it  is  used  incidentally  Qx).  The 
court  will  not  decide  upon  a  special  case  stating  that  any  of 
the  deeds  or  documents  therein  mentioned  are  unstamped  (^y). 
The  draft  of  an  agreement  for  letting  premises  in  which 
alterations  were  made,  and  which  was  finally  agreed  to  by 
the  solicitors  on  both  sides,  but  was  never  signed,  is  not 
admissible  as  evidence  of  an  express  contract  without  a 
stamp  (z).  So  a  rough  imperfect  memorandum  of  an  agree- 
ment to  become  surety  for  rent  must  be  stamped,  and  will 
exclude  oral  evidence  of  such  agreement  (a).  Where  a  jjro- 
posal  was  made  in  writing  by  A.  to  let  a  piece  of  land  to  B. 
on  certain  terms  contained  in  a  written  agreement  between 

(7)  Doc  d.  Copley  V.  Day,  13  East,  (.r)  Wlioldon  v.  ]\Tatt1u'\vs,  2  Chit. 

241.  30t);  Forsyth  17.  Jorvis,  1  Stark.  437. 

(r)  Doo  d.  Waters  v.  Houghton,  1  (//)  Nixon  v.  Alhion  Marine  Insur- 

Man.  &  II.  208.  ance  Co.,  L.  K.,  2  Ex.  338 ;  30  L.  J.. 

{s)  See  Reid  v.  Dccre,  7  B.  &  C.  201.  Ex.  180. 

It)  Stone  ('.  Uugers,  2  M.  &  W.  443.  (z)  Cliadwick  v.  Clarke,  1  C.  B.  700. 

(«)  Worthington  v.  Warrington,  5  {a)  (Jlovcr  v.  Ilaikett,  2  II.  &  N. 

C.  B.  030.  487. 

304 


Ch.  V.  S.  13.J  STAMPS    ON    LEASES.  *187 

B.  and  C,  and  A.  afterwards  agreed,  by  parol,  that  B.  should 
liave  the  land  upon  the  terms  proposed ;  it  was  held,  in  an 
action  for  a  breach  of  the  agreement,  that  the  original  pro- 
posal was  receivable  in  evidence  without  a  stamp  (J). 
Where,  pending  a  negotiation  for  a  tenancy  for  less  than 
three  years,  the  terms  of  which  were  arranged  by  parol,  a 
memorandum  was  signed  and  delivered  by  the  landlord  to 
the  tenant,  saying  he  should  be  happy  to  allow  him  to  quit 
on  a  certain  event  without  notice  :  it  was  held  this  might  be 
given  in  evidence  without  a  stamp  (<?).  A  written  paper, 
signed  by  an  auctioneer,  and  delivered  to  a  bidder,  to  whom 
lands  were  let  by  auction,  containing  the  description  of  the 
lands,  the  term  for  which  they  were  let  to  the  bidder,  and 
the  rent  payable,  but  not  the  lessor's  name,  was  held  neces- 
sary to  be  stamped  (t?) :  but  a  similar  paper  not  signed  by 
the  auctioneer,  or  any  of  the  parties,  was  held  not  to  be  such 
a  minute  of  the  agreement  as  was  required  to  be  stamped, 
nor  such  a  writing  as  would  exclude  parol  evidence  (e). 
Where  there  was  a  parol  agreement  to  demise  cer- 
tain premises  upon  *  the  terms  and  conditions  con-  [*187] 
tained  in  a  lease  of  the  same  premises  granted  by  the 
lessor  to  another  person ;  it  was  held,  that  in  an  action  by 
the  lessor  against  the  lessee  for  rent  and  non-repairs,  the 
lease  could  not  be  read  in  evidence  unless  it  was  stamped  (/). 
Where  an  instrument  stamped  with  a  lease  stamp  demised 
certain  premises  upon  the  conditions  contained  in  the  annexed 
lease,  which  was  not  stamped,  it  was  held,  that  the  annexed 
lease  was  admissible  in  evidence  without  a  stamp  (/y). 
Though  an  oral  lease  for  three  years  may  be  good,  yet  if  it 
be  reduced  into  writing  it  must  be  stamped,  or  it  will  not  be 
receivable  in  evidence  (A). 

Objection  to  stamp  at  trial.  —  Where  a  document  is  offered 

(b)  Drant  v.  Browne,  3  B.  &  C.  665  ;  (/)  Turner  v.  Power,   7  B.   &  C. 
Edgar  v.  Blicke,  1  Stark.  R.  464.  625;    1  Moo.  &  M.  131. 

(c)  Bethell  v.  Blencowe,  3  M.  &  G.  (g)  Tearce  v.  Cheslyn,  4  A.   &  E. 
119.  225;  Strutt  v.  Robinson,  3  B.  &  Ad. 

(d)  Ramsbottom  v.  Mortley,  2  M.  395. 

&  S.  445.  (/()  Prosser  i-.  Phillips,  Bull,  N.  P. 

(e)  Ramsbottom  v.  Tunbridge,  5  M.       269. 
&  S.  434. 

305 


*188  THE   LEASE.  [Ch.  V.  S.  13. 

in  evidence,  and  it  is  objected  to  by  the  opposite  party  on 
the  ground  that  it  is  not  sufficiently  stamped,  proof  of  that 
lies  on  the  party  who  makes  the  objection,  it  being  a  fact(z). 
The  objection  is  one  of  a  preliminary  nature  to  be  decided 
by  the  judge  (not  by  the  jury),  who  Avill,  immediately  upon 
the  objection  being  taken,  permit  evidence  to  be  interposed, 
and  arguments  adduced,  to  prove  or  disprove  the  sufficiency 
of  the  stamp  (/:).  Where  a  document  has  been  altered  so 
as  to  affect  its  validity  and  also  the  stamp,  it  should  be 
objected  to  on  two  grounds,  viz.,  1.  That  the  alteration  has 
made  the  deed  void ;  2.  That  it  has  rendered  a  new  stamp 
necessary :  unless  the  second  point  be  duly  taken,  it  cannot 
be  relied  upon,  on  an  application  for  a  new  trial,  &c.  Q'). 
The  judge's  decision  that  the  stamp  is  sufficient,  or  that  no 
stamp  is  necessary,  is  conclusive  (?«)  ;  but  his  decision  the 
other  way  may  be  reviewed  upon  an  application  for  a  new 
trial,  &c.  (w).  Since  the  Common  Law  Procedure  Act,  1854, 
s.  28  (repealed  and  re-enacted  by  s.  15  of  the  Stamp  Act, 
1870),  objections  to  written  evidence  for  want  of  a  sufficient 
stamp  are  usually  made  by  the  judge's  marshal  or  associate, 
whose  duty  it  is  to  make  the  objection,  although  neither 
party  wishes  it,  upon  the  production  of  the  document  as 
evidence.  But  sometimes  this  may  be  avoided  by  the  parties 
mutually  agreeing  in  Avriting  before  the  trial  to  admit  copies 
in  evidence  instead  of  the  originals  (o).  Under  the  Stamp 
Act,  1870,  the  associate  can  make  onl}'-  sucli  objections  for 
want  of  a  stamp  as  the  parties  might  have  made  if  tlie  statute 
had  not  passed  (o). 

stamping    after    execution.  —  By    the    Stamp    Act, 

[*]88]   1870,  s.  15,  an  unstamped  or  insufficiently  *  stamped 

instrument  may  be  stamped  after  execution,  on  pay- 

(/)  Wadflinjiton  v.  Francis,  5  Ksp.  Vict.     c.     125),    s.    P>\  ;     Siordet    i;. 

182;   Doe  d.  l-'ryor  v.  Cooiul.s,   .]   Q.  Kiiczyiiski,  17  C.  B.  251  ;  25  L.  J.,  C. 

13.  (iH7.  1'.  2  ,   Ilcisir  v.  Grout,  6  M.  &  N.  35. 

(/t)  Hartlctt  r.  Smitli,  11   M.  &  W.  (h)  Fislinionpcrs' Co.  v.  Dimsdalo, 

483,485;  Painter  v.  Hill,  2  C.  &  K.  12   C.    H.  557;    Gurr  v.    Scudds,   11 

n24;  Doc  d.  Fryer  r.  Coombs,  3  Q.  B.  K.xcli.  !!)(»;  Sliari)k's  r.  Kickard,  2  II. 

087  ;    Key  v.  Matliias,  3  F.  &  F.  27it.  &  N.  57. 

(/;  Ka^leton  r.  Gutteridj^a',  11   M.  (o)  Traviss  f.  llargreave,  4  F.  &  F. 

&  W.  4(;5,  40!);  2  Dowl.  N.  S.  1053.  1078. 

(m)  C.   L.   V.   Act.    1854   (17  &  18 

306 


Ch.  V.  S.  13.]  STAMPS   ON  LEASES.  *188 

ment  of  the  unpaid  duty  and  a  penalty  of  lOZ.,  and,  in  case 
the  duty  exceeds  10/.,  of  5  per  cent,  interest- on  the  un2)aid 
duty  from  the  day  of  execution  up  to  the  time  when  the 
interest  is  equal  to  the  unpaid  duty.  Where  an  instrument 
is  not  required  by  law  to  be  stamped  within  a  particular 
time  after  its  execution,  the  court,  upon  its  being  offered  in 
evidence,  will  not  inquire  when  the  stamp  was  affixed,  nor, 
if  a  penalty  was  incurred,  whether  the  proper  penalty  was 
paid  on  the  stamping  {p) :  and  if  an  instrument  has  been 
originally  unstamped,  but  has  been  stamped  on  payment  of 
the  penalty,  it  is  admissible  in  evidence,  though  the  receipt 
for  the  penalty  has  been  erased ;  provided  it  be  proved  that 
such  receipt  has  been  indorsed  on  it ;  it  is  not  necessary  to 
prove  the  commissioners'  signature  to  such  a  receipt  (5'). 

Stamping  for  purposes  of  evidence.  —  By  s.  16  of  the  Stamp 
Act,  1870,  an  unstamped  lease  (amongst  other  documents) 
if  tendered  in  evidence  in  any  Court  of  Civil  Judicature  in 
JEngland  may  be  received  in  evidence  on  payment  to  the 
officer  of  the  court  of  the  amount  of  unpaid  duty,  and  the 
penalty  payable  on  stamping  the  same,  and  a  further  sum 
of  one  pound. 

Lease  stamped  according  to  law  at  time  of  execution.  — 
Under  prior  stamp  acts  it  had  been  held  (r),  that  in  a  case 
of  stamping  after  execution,  the  proper  stamp  to  be  applied 
was  that  Avhich  was  necessary  at  the  time  the  stamp  was 
actually  affixed.  But  the  Stamp  Act,  1870,  s.  17,  expressly 
enacts  that  "save  as  aforesaid"  [/.g.,  save  as  in  ss.  15,  16, 
mentioned],  "no  instrument  executed  in  any  part  of  the 
United  Kingdom  shall,  except  in  criminal  proceedings,  be 
pleaded  or  given  in  evidence,  or  admitted  to  be  good,  useful 
or  available,  in  law  or  equity,  unless  it  is  duly  stamped  in 
accordance  with  the  lata  in  force  at  the  time  when  it  was  first 
executed '''  (^s). 


(p)   Rex  V.  Preston,  5  B.  &  Ad.  &  R.  834 ;  Deakin  r.  Penniall,2  Exch. 

1028.  320. 

(7)    Apothecaries'    Co.    v.    Ferny-  (s)  See  this  enactment  acted  on  in 

hough,  2  C.  &  P.  438.  Clarke  v.  Roche,  3  Q.B.  D.  170, 

(?■)  Buckwortli  V.  Simpson,  1  C.  M. 

307 


*189  THE   LEASE.  [Ch.  V.  S.  14. 

Sect.  14.  —  Execution  of  Lease. 

Sealing  essential  to  lease  by  deed.  —  Where  a  lease  is  by 
deed,  the  respective  parties  should  seal  and  deliver  it,  for  an 
instrument  not  under  seal  is  no  deed  (f)}  One  piece  of  wax 
may  be  the  seal  of  several  persons,  but  it  must  appear  by  the 
deed  and  profess  to  be  the  seal  of  each  (it).  It  is  not,  how- 
ever, absolutely  essential,  that  there  should  be  either 
[*189]  wax  or  wafer ;  it  *  seems  to  be  enough  that  there 
should  be  an  impression  on  the  parchment  or  paper, 
with  the  intent  of  sealing  (x).  The  method  of  our  Saxon 
ancestors  was  for  such  as  could  write  to  subscribe  their 
names,  and,  whether  they  could  write  or  not,  to  affix  the 
sign  of  the  cross,  which  custom  illiterate  persons  for  the 
most  part  to  this  day  keep  up  by  signing  a  cross  for  their 
mark,  when  unable  to  write  their  names.  A  deed  is  well 
executed  by  an  illiterate  person,  if  it  be  signed  by  a  third 
person  at  his  request  and  in  his  presence,  and  sealed  and 

(J.)  1  Steph.  Com.  402.  {x)  See  Reg.  v.  Trustees  of  Covent 

(«)   Cooch  V.  Goodman,   2   Q.   B.       Garden,  7  Q.  B.  D.  238,  n. 
580. 

1  Execution  of  leases.  —  Covenants  in  a  sealed  lease  as  a  general  rule  in 
law  bind  only  those  nu-ntioncd  as  parties.  Haley  r.  Boston  Belting  Co.,  140 
Mass.  73. 

In  New  York,  it  lias  been  held  that  a  corporation  wliicli  had  agreed  to 
assume  the  lessee's  covenants,  and  was  mentioned  in  lease  as  real  party  was 
liable  directly  to  the  lessor.  Van  Scliaick  i\  Third  Ave.  H.  H.  Co.,  38  N.  Y. 
346. 

Parties  who  execute  in  their  own  names,  although  for  benefit  of  otliers,  are 
personally  liable.  Seaver  r.  Coburn,  10  Cash.  (Mass.)  324.  Upon  a  lease  to 
"  A.,  Treasurer  of  Eagle  Lodge  "  with  covenant  not  to  underlet,  A.  is  per- 
sonally liable.     Grau  v.  McVicker,  8  Biss.  13. 

A  scaled  lease  executed  by  but  one  party  is  binding  upon  him  if  accepted 
and  performed  by  the  other  party,  Jennings  v.  McComb,  112  Pa.  St.  518, 
522  {per  Trunkey,  J.)  ;  Grove  v.  Hodges,  55  Pa.  St.  504;  and  the  title  will  pass 
under  an  indenture  sealed  only  by  the  grantor  or  lessor  if  accepted  by  the 
grantee  or  lessee,  both  being  bound  by  the  covenants,  the  remedy  against  one 
being  assumpsit,  and  against  the  other  covenant.  Grove  v.  Hodges,  supra  ; 
Libbey  r.  Staples,  30  Me.  KU). 

If,  however,  only  the  lessee  execute  and  do  not  occupy,  the  lessor  cannot 
enforce  the  lease.  Cleves  v.  Willoughbv,  7  Mill  (N.  Y.)  83  {prr  Beardsley, 
J.). 

As  to  the  effect  of  (x-cuiiMtioii  uiidiT  void  and  imperfectly  executed  leases, 
see  unl",  Chap.  V.,  sec.  2,  notes,  and  sec.  4,  notes. 

30H 


Bowen  &  BowenJ 


Ch.  V.  S.  14.]  EXECUTION   OF   LEASE.  *189 

delivered  by  him.     It  need  not  be  read  over  to  him,  unless 
he  requires  it  (^). 

Whether  lease  by  deed  must  be  signed.  —  It  is  a  point  OH 
which  authorities  are  at  variance,  whether  the  Statute  of 
Frauds,  29  Car.  2,  c.  8  (2),  requires  leases  by  deed  to  be 
signed  (a).  The  preponderance  of  authority  (5)  seems  to 
be  in  favour  of  the  signature  not  being  necessary. 

Failure  of  lessor  to  execute.  —  A  lessee  entering  and  hold- 
ing under  a  lease  not  executed  by  his  landlord  is  not  estopped, 
in  an  action  by  the  assignee  of  the  lessor,  from  showing  such 
want  of  execution  by  the  lessor  (c).  Where  a  lease  for  a 
term,  containing  a  covenant  to  repair  during  the  term, 
although  executed  by  the  lessee,  is  not  executed  by  the 
lessor,  the  lessee  is  not  bound  hy  the  covenant,  for  the  lease 
beincj  void  he  has  not  had  the  consideration  for  his  cove- 
nant(f?).  And  it  seems  that  such  lessee  would  not  be 
bound  by  such  a  covenant  by  the  fact  of  his  having  enjoyed 
the  premises  for  a  period  of  years  equal  to  those  which  the 
term  would  have  comprised,  if  it  had  been  granted,  if  he 
was  not  bound  during  his  continuance  (e).  But  he  may 
be  liable  upon  an  implied  tenancy  on  the  like  terms  and 
conditions  as  those  expressed  in  the  lease. 

Delivery.  —  The  lease  must  also  be  delivered  either  by  the 
parties  themselves  or  by  their  attorney  authorized  by  a  power, 
for  merely  sealing  does  not  make  a  deed :  the  delivery  is 
also  expressed  in  their  attestation  "sealed  and  delivered,^'' 
for  delivery  makes  it  a  lease.  Almost  any  manifestation, 
however,  of  the  party's  intention  to  deliver,  if  accompanied 
by  an  act  importing  the  same,  will  constitute  a  delivery. 

(j/)  Rex  V.  Longnor,  1  N.  &  M.  577.  {d)  Com.  Dig.  tit.  Corenant  (F.)  ; 

{z)  Ante,  127.  Soprani  v.  Skurro,  Yelv.  18;  Waller 

(a)   Cooch  V.  Goodman,    2    Q.   B.  v.  Dean  and  C.  of   Norwich,  Owen, 

580 ;  Aveline  v.  Whisson,  4  M.  &  G.  i;]6 ;  Knipe  v.  Palmer,  2  Wils.  132  ; 

801.  Pitman    v.    Woodbury,    3    Exch.   4; 

(i)  Williams  on  Real  Projierty,  p.  Swatman    v.    Ambler,    8    Exch.    72. 

142;  Leake  on  Contracts,  p.  77.  But  see    How  v.    Greek,  3  H.  &  C 

(c)  Cardwell  v.  Lucas,   2  M.  &  W.  301 ;  34  L.  J.,  Ex.  4. 
Ill;    Soprani   v.    Skurro,   Yelv.    19;  (e)  Pitman  r.  Woodbury  and  Swat- 
Rose  V.  Poulton,  2  B.  &  Ad.  822.  man  f.  Ambler,  supra. 

309 


*190  THE  LEASE.  [Cn.  V.  S.  14. 

Escrow.  —  But  when  it  is  intended  that  the  lease  shall  not 
take  effect  as  a  demise  until  something  is  done  by 
[*190]  the  lessee  —  e.g.  payment  of  the  premium  *  or  of  the 
expenses  —  the  lease  should  be  delivered  only  as  an 
escrow,  i.e..,  conditionally  to  take  effect  as  a  lease  upon  the 
performance  of  what  is  so  to  be  done  (/).  Although  sealed 
and  delivered  and  attested  in  the  usual  manner,  parol  evi- 
dence is  admissible  to  show  that  it  was  only  to  ojjerate  as  an 
escrow,  until,  &c.  (</).  Whether  it  was  intended  to  operate 
as  a  deed,  or  only  as  an  escrow,  is  a  question  of  fact  for  the 
jury  (A). 

By  attorney.  — An  attorney  or  agent  to  execute  a  deed  in 
the  absence  of  his  principal  must  be  authorized  by  deed  (i), 
and  he  must  execute  it  in  the  name  of  his  principal,  or  in  his 
own  name,  adding  such  words  as  show  that  he  acts  solely  as 
the  agent  of  his  principal  (/r).  If  an  unauthorized  person 
seal  and  deliver  a  deed  in  the  name  and  on  behalf  of  one  of 
the  parties,  and  the  party  himself  deliver  it  afterwards,  he 
thereby  adopts  the  sealing,  and  makes  it  his  own  deed  (J). 

Date.  —  Every  deed  is  taken  to  be  delivered  on  the  day  it 
bears  date,  unless  the  contrary  be  proved  {m^  ;  and  if  proved, 
it  operates  only  from  the  time  of  execution  (n) :  but  if  the 
date  be  false  or  impossible,  the  delivery  ascertains  the  time 
of  it  (o).  Parol  evidence  is  admissible  to  show  that  a  written 
contract  which  has  no  date  was  not  intended  to  operate  from 
its  delivery,  but  from  a  future  uncertain  period  (p). 

(/)  Shep.  Touch.  58,  59.  (0  Tupper  v.  Foulkes,  9  C.  B.,  N. 

Ig)  Gudgcn   v.   Bessett,  6  E.  &  B.  S.  797. 
986  ;  Bowkor  v.  Bunk-kin,  11  M.  &  W.  ("0  Co.  Lit.  36  ;  2  Blac.  Com.  307. 

129  ;  Cliristio  v.  Wilmington,  8  E.xch.  ()')  Cooper  v.  Robinson,  10  M.  &  W. 

287,  290  ;  Pym  v.  Cainpl)ell,  6  E.  &  B.  694  ;  Shaw  c.  Kay,  1  Exch.  412 ;  Bird 

370  ;  25  L.  J.,  Q.  B.  277  ;  Furnoss  r.  v.  Baker,  1  E.  &  E.  12  ;  28  L.  J.,  Q.  B. 

Meek,  27  L.  J.,  Ex.  .34  ;  Millersliip  v.  7  ;    Jeron    v.  Tomkinson,   1   li.   &  N. 

Brookes,  5  H.  &  N.  797  ;  29  L.  J.,  Ex.  196,  206 ;   Steele  v.  Mart,  4  B.  &  C. 

369;  Murray  i;.  Earl  of  Stair,  2  B.&C.  272;  Browne  r.  Burton,  5  D.  &  L.  289. 
82 ;  Davies  v.  Jone.s,  17  C.  B.  625,  634.  (o)  Murray  v.  Earl  Stair,  2  B.  &  C. 

{h)  Ponsford    v.    Walton,   L.  K.,  3  82;  Bowker  r.  Burdekin,  11  M.  &  W. 

C.  P.  167,  174.      ■  128;  Doe  d.  Garnons  v.  Knight,  5  B. 

(0  Harri.son    v.   Jackson,    7    T.  R.  &  C.  671 ;  Hare  v.  IIort()n,5  B.  &  Ad. 

207;    Berkely    v.  Hardy,  5  B.   &   C.  715 ;  Goodri^ht  r.  Grefrory,  Lofft,339; 

355;  Smith  L.  &T.  82  C2nd  ed.).  Goodri^ht    d    Carter     v.    Strai)han, 

(k)  M'Ardle  v.  Irish  Iodine  Co.,  15  Cowp.  201  ;  Lofft,  763. 
Ir.  Com.  L.  R.  140.  ( /')  Davis  v.  Jones,  17  C.  B.  626. 

310 


Cii.  V.  S.  15.]  REGISTRATIONS   OF   LEASES.  *191 

Attestation  by  witnesses.  —  The  last  requisite  is  the  attes- 
tation or  execution  of  the  lease  in  the  presence  of  witnesses, 
though  this  is  generally  necessary  rather  for  the  preservation 
of  the  evidence,  than  to  constitute  the  essence  of  the  deed. 
But  if  the  lease  be  made  in  pursuance  of  a  power,  it  must 
be  executed  and  attested  as  required  by  the  power,  or  by  the 
stat.  22  &  23  Vict.  c.  35,  s.  12  (q).  And  when  it  requires  to 
be  registered  in  Middlesex  or  Yorkshire  (infra.  Sect.  15),  the 
"memorial"  required  by  s.  5  of  the  Yorkshire  Registries 
Act,  1884,  must,  by  s.  6  of  that  act,  be  attested  by  one  wit- 
ness or  more,  "  one  of  whom  at  least,"  by  s.  6  of  the  act, 
"shall  have  been  a  witness  to  the  execution."  In  the  North 
Riding  two  witnesses  were  necessary  prior  to  the  Act  of 
1884  (r). 

*  Sect.  15.  —  Registrations  of  certain  Leases  in  Mid-  [*191] 
dlesex,  Yorkshire  and  Bedford  Levels. 

In  Middlesex.  —  If  the  demised  premises  be  situate  in  Mid- 
dlesex, Yorkshire,  or  the  Bedford  Levels,  and  if  the  lease  be 
not  at  a  rack  rent  or  for  more  than  21  years  in  Middlesex,  or 
for  more  than  21  years  in  Yorksliire,  or  for  more  than  7  years 
in  the  "  Bedford  Levels,"  registration  will  be  necessary  to 
give  it  force  against  subsequent  purchasers  or  mortgagees. 
This  registration  is  provided  for  in  Middlesex  by  7  Ann.  c. 
20,  s.  17  of  which  is  as  follows : 

Leases  not  required  to  be  registered.  — "  This  act  shall  not 
extend  to  any  copyliold  estates,  or  to  leases  at  a  rack  rent  (s), 
or  to  any  lease  not  exceeding  one-and-twenty  years.,  ivhere  the 
actual  possession  and  occupatioti  goeth  alofig  with  the  lease,  or 
to  any  of  the  chambers  in  Serjeants'  Inn,  the  Inns  of  Court, 
or  Inns  of  Chancery ;  anything  in  this  act  contained  to  the 
contrary  thereof  in  anywise  notwithstanding." 

Leases  not  comprised  in  this  ver}^  extensive  exception  may 
be  registered  in  such  manner  as  is  in  the  act  directed ;  and 
every  such  lease  "  shall  be  adjudged  fraudulent  and  void  (t} 

(q)  Post,  Sect.  19.  (f)  See  Wormald   v.  Maitland,  35 

0)  Post,  Sect.  15.  L.  J.,  Ch.  69;  13  W.  R.  832. 

(s)  /.  e.  a  rent  of  the  full  annual 
value  of  the  thing  demised. 

311 


*192  THE   LEASE.  [Ch.  V.  S.  15. 

against  any  subsequent  purchaser  or  mortgagee  for  valuable 
consideration,  unless  a  memorial  thereof  be  registered  as  by 
the  act  is  directed  before  the  registering  of  the  memorial  of 
the  deed  or  conveyance  under  which  such  subsequent  pur- 
chaser or  mortgagee  shall  claim. 

Memorials,  how  executed,  &c.  —  By  sect.  5,  "  every  such 
memorial  shall  be  put  into  writing  (m)  on  vellum  or  parch- 
ment, and  brought  to  the  said  office  (rr),  and  shall  be  under 
the  hand  and  seal  of  some  or  one  of  the  grantors,  or  some  or 
one  of  the  grantees,  his  or  their  heirs,  executors  or  adminis- 
trators, guardians  or  trustees,  attested  hy  two  witnesses,  one 
ivhereof  is  to  be  one  of  the  tvitnesses  to  the  execution  of  such 
deed  or  conveyance,  which  witness  shall  upon  his  oath,  before 
one  of  the  said  registrars,  or  before  a  master  extraordinary  in 
Chancery  (^),  prove  the  signing  and  sealing  of  such  memo- 
rial, and  the  execution  of  the  deed  or  conveyance  mentioned 
in  such  memorial." 

Contents  of  memorial.  —  By  sect.  6,  "  every  memorial  of 
any  deed  or  conveyance  shall  contain  the  day  of  the  month 
and  the  year  when  such  deed  or  conveyance  bears  datre,  and 
the  names  and  additions  of  all  the  parties  to  such  deed  or 
conveyance,  and  of  all  the  witnesses  thereto  and  the  places 
of  their  abode,  and  shall  express    or   mention   the   honors, 

manors,  lands,  tenements,  and  hereditaments  con- 
[*192]  tained  in  such  deed  *  or  conveyance,  and  the  names 

of  all  the  parishes,  townships,  hamlets,  precincts  or 
extra-parocliial  places  within  the  said  county  where  any  such 
honors,  &c.,  are  lying  or  being,  that  are  given,  granted,  con- 
veyed or  in  any  way  affected  or  charged  by  any  such  deed  or 
conveyance,  in  such  mannei'  as  the  same  are  expressed  or  men- 
tioned in  such  deed  or  conveyance,  or  to  the  same  effect."  In 
preparing  a  lease  or  other  conveyance  which  will  have  to  be 
registered,  this  enactment  should  be  borne  in  mind,  and  the 
parcels  described  accordingly,  so  that  they  may  be  merely 

Ck)  It  may  he   litliofrrajjlied  ;  Rejj.  (//)  Now,  "  Commissioner  to  ndinin- 

V.  Registrars  of    Mi<l<ik'sox,  7  Q.   H.  ister  oaths  in   the    Supreme    ('ourt," 

156.  Ifi  &  17  Vict.  c.  78;  Judicature  Act, 

(x)  The  Registrar's   OfTiee,  No.  8,  1873,  s.  82. 
Serle  Street,  Lincoln's  Inn,  London, 
W.  C. 

312 


Ch.  V.  S.  15.]  REGISTRATIONS   OF   LEASES.  *192 

copied  in  the  memorial,  and  yet  give  all  the  particulars 
required  by  the  statute  (2). 

Certificate  of  registration.  —  The  deed  must  be  produced, 
together  with  the  memorial  thereof,  to  tlie  registrar,  who  is 
to  indorse  on  the  deed  a  certificate  of  the  registration,  &c., 
"  which  certificate  shall  be  taken  and  allowed  as  evidence 
of  such  respective  registries  in  all  courts  of  record  whatso- 
ever "  (a). 

Memorials  to  be  filed  in  due  order.  —  And  the  registrar 
"  shall  duly  file  every  such  memorial  in  order  of  time  as  the 
same  shall  be  brought  to  the  said  ofifice,  and  enter  or  register 
the  said  memorials  in  the  same  order  that  they  shall  respec- 
tively come  to  his  hands."  When  two  deeds  are  registered 
on  the  same  day  and  at  the  same  hour,  they  must  be  presumed 
to  have  been  registered  in  the  order  as  numbered  (6). 

Two  deeds  as  to  same  land.  —  By  sect.  7,  when  two  or  more 
deeds  relating  to  the  same  land  are  registered  together,  the 
parcels  need  not  be  stated  at  length  more  than  once  in  the 
memorial  and  registry  thereof. 

Regifetry  of  judgments,  &c.  —  By  sect.  18,  judgments,  stat- 
utes, and  recognizances  shall  affect  or  bind  lands  in  Middle- 
sex only  from  the  time  of  a  memorial  thereof  being  registered 
as  therein  mentioned  (c). 

Yorkshire.  —  The  Yorkshire  Registry  Act,  1884,47  &  48 
Vict.  c.  54,  consolidating  and  amending  2  &  3  Ann.  c.  4,  5  & 
6  Ann.  c.  18,  and  6  Ann.  c.  35,  s.  34  (West  Riding),  6  Ann. 
c.  35  (East  Riding),  and  8  Geo.  2,  c.  6  (North  Riding),  con- 
tains similar  enactments  with  respect  to  hereditaments  in 
Yorkshire. 

The  excepting  clause,  s.  28,  is  as  follows : 

"  Nothing  in  this  act  contained  shall  be  deemed  to  extend 
to  any  copyhold  hereditaments,  nor  to  any  lease  not  exceed- 
ing   twenty-one    years,    or   any   assignment   thereof    where 

(2)  Reg.  V.  Registrars  of  Middle-  deed  is  registered ;  Wollaston  v.  Hake- 
sex,  15  Q.  B.  976.  will,  3  M.  &  G.  297. 

(a)  The  registered  memorial  of  a  (6)  Neve    v.  Pennell    and    Hunt  v. 

deed  conveying  lands  in  Middlesex  is  Neve,  33  L.  J.,  Ch.  19;  2  Hem.  &  M, 

secondary  evidence  of  the  contents  of  170. 

such  deed  against  the  personal  repre-  (c)  Benham  v.  Keane,  31  L.  J.,  Ch. 

scntatives  of  the  party  by  whom  such  129  ;  8  Jur.,  N.  S.  604. 

313 


*193  THE  LEASE.  [Ch.  V.  S.  15. 

accompanied  by  actual  possession,  from  the  making  of  such 
lease  or  assignment." 

Registry  offices  in  Yorkshire.  —  B}'  S.  31  of  the  act  the  reg- 
istry offices  are,  as  under  the  repealed  acts,  at  Northallerton 
for  the  North  Riding,  at  Beverly  for  the  East  Riding,  and  at 

Wakefield  for  the  West  Riding. 
[*193]       *  By  the  Vendor  and  Purchaser  Act,  1874  (37  &  38 

Vict.  c.  78)  (c^),  "  where  the  will  of  a  testator  devis- 
ing land  in  Middlesex  or  Yorkshire  has  not  been  registered 
within  the  period  allowed  by  law  in  that  behalf,  an  assurance 
of  such  land  to  a  purchaser  or  mortgagee  by  the  devisee  or 
by  some  one  deriving  title  under  him  shall,  if  registered 
before,  take  precedence  of  and  prevail  over  any  assurance 
from  the  testator's  heir  at  law." 

In  the  Bedford  Level.  —  By  15  Car.  2,  c.  17,  s.  8,  "  no  lease, 
grant  or  conveyance  of  or  charge  out  of  or  upon  the  said 
ninety-five  thousand  acres  [of  the  Bedford  Level],  or  any 
part  thereof,  except  leases  for  seven  years  or  under  in  posses- 
sion, shall  be  of  any  force  but  from  the  time  it  shall  be 
entered  with  the  registrar,  as  thereby  directed ;  the  entry 
whereof  being  endorsed  by  the  said  registrar  upon  such 
lease,  grant,  conveyance  or  charge,  shall  be  as  good  and 
effectual  in  the  law  as  if  the  original  book  of  entries  were 
produced  at  any  trial  at  law  or  otherwise."  The  intention 
of  these  acts  plainly  is  to  secure  subsequent  purchasers 
and  mortgagees  against  secret  conveyances  and  fraudulent 
incumbrances. 

Cases  upon  Middlesex,  Yorkshire  and  Bedford  Level  Registry- 
Acts.  —  A  lessee  of  land  in  the  Bedford  Level  cannot  object 
to  an  action  by  his  landlord  for  a  breach  of  covenant  in  not 
repairing,  that  the  lease  was  void  by  statute  for  want  of 
being  registered,  as  the  act  does  not  avoid  it  as  between  the 
parties  themselves,  but  only  postpones  its  priority  with  respect 
to  subsequent  incumbrancers  registering  their  title  before  (e). 
All  leases  by  deed  for  a  valuable  consideration  not  expressly 
excepted  are  subject  to  the  provisions  of  the  Middlesex  and 
Yorkshire  acts.      Therefore,  where  lands  within  a  register 

(f/)  Sect.  18.  ('')  Hodson  v.  Sharpc,  10  East,  360, 

314 


Cii.  V.  S.  15.]  REGISTRATIONS   OF   LEASES.  *194 

county  are  demised  by  way  of  mortgage,  the  mortgagor  to 
enjoy  the  same  until  default  in  payment  of  the  principal  and 
interest,  the  deed  requires  registration  (/).  But  a  deposit 
of  a  lease  with  or  without  a  memorandum  in  writing,  by  way 
of  equitable  mortgage  of  lands  in  Middlesex,  need  not  be 
registered,  not  being  a  "  deed  or  conveyance  "  within  the 
meaning  of  the  7  Ann.  c.  20  (^),  although  actual  or  con- 
structive notice  thereof  will  in  equity  affect  a  subsequent 
purchaser  (^Ji).  A  further  charge  which  is  not  registered 
will  be  postponed  to  a  subsequent  mortgage  which  is  regis- 
tered (i).  The  mere  receipt  of  rent  Avould  not,  it  seems,  be 
deemed  an  actual  possession  and  occupation  witliin 
the  registry  acts  (^).  A  lease  within  the  *  exception  [*194] 
of  these  acts  will  so  continue,  notwithstanding  it  may 
afterwards  become  a  valuable  and  saleable  interest  (Z).  Reg- 
istering an  assignment  is  not  registering  the  lease  (m).  In 
registering  an  assignment  of  a  lease,  the  parcels  ought  to  be 
inserted  in  full,  and  it  is  not  enough  to  refer  to  them  as 
being  described  in  the  lease  (w).  A  memorial  of  an  assign- 
ment of  lease  indorsed  on  the  lease  was  tendered  for  regis- 
tration to  the  registrar  for  Middlesex,  under  stat.  7  Ann.  c. 
20,  in  the  following  form  :  "  An  indenture  of  assignment." 
Then  followed  a  statement  of  the  date  and  parties  to  the 
assignment,  "assigning  all  that  brick  messuage,"  &c.  (speci- 
fying the  premises  and  giving  a  full  description  of  them  as 
to  locality  and  occupation),  "  by  the  description  of  the  mes- 
suage or  tenement,  out-offices  and  premises,  comprised  in  and 
demised  by  the  within-written  indenture  of  lease,  with  the 
appurtenances."     The   memorial  did  not  state  the   date  of 

(/)  Rigge  on  Registration,  88,  n.  6.39;  29  L.  J.,  Ch.  419;  Neve  v.  Pen- 

(o)  ;  Wilson  on  Registration,  29 ;  Sug.  nell,  and  Hunt  v.  Neve,  contra. 

V.  &  P.  727  (14th  ed.).  (k)  Fury  v.  Smith,  1  Huds.  &  Br. 

(g)  Sunipter  v.  Cooper,  2  B.  &  Adol.  735,  751. 

223;  Wright  v.  Stansfield,  27   Beav.;  (/)  Sug.  V.  &    P.  727    (14th    ed.) ; 

28  L.  J.,  Ch.  183.     But  see  Neve  v.  Wilson  on  Registration,  29. 

Pennell,  and  Hunt  v.  Neve,  33  L.  J.,  (m)  Honeycomb  d.  Halpen  v.  Wal- 

Ch.  19;  2  Hem.  &  M.  170;  Wormald  dron,  2  Stra.  1004;    Fleming   v.  Ne- 

V.  Maitland,  35  L.  J.,  Ch.  69;  13  W.  ville,  Hayes,  23;    Fury   v.    Sniitli,    1 

R.  832.  Huds.  &  Br.  735,  755. 

(A)  Wormald  v.  Maitland,  supra.  (n)  Sug.  V.  &  P.  731  (14th  ed.). 

0")  Moore  v.  Culverhouse,  27  Beav. 

315 


*195  THE   LEASE.  [Ch.  V.  S.  15. 

the  lease  itself  or  the  parties  to  it.  It  appeared  on  affidavit, 
in  support  of  a  rule  for  a  mandamus  to  the  registrar  to  regis- 
ter this  memorial,  that  the  full  description  of  the  premises 
was  taken  from  the  lease :  it  was  held,  that  the  memorial 
did  not  comply  with  the  requirements  of  stat.  7  Ann.  c.  20, 
s.  6,  as  it  did  not  show  that  the  premises  were  described  in 
such  manner  as  the  same  were  expressed  in  the  deed  to  be 
registered,  or  in  the  lease  thereby  referred  to.  It  was  also 
held,  that  where  the  deed,  of  wliich  a  memorial  is  to  be 
registered,  is  indorsed  on  an  earlier  deed,  it  is  not  sufficient 
to  describe  the  premises  by  such  memorial  in  the  terms  used 
in  the  earlier  deed,  without  express  reference  to  it,  if  the 
deed  to  be  registered  describes  the  premises  simply  b}-  refer- 
ence to  the  earlier  deed  (o).  Where  there  were  two  assign- 
ments of  the  same  lease  of  certain  premises  in  Middlesex, 
and  the  last  executed  was  registered  first,  it  was  held  that  at 
law  the  deed  last  registered  must  be  considered  as  fraudu- 
lent and  void,  under  the  statute  7  Ann.  c.  20,  s.  1 ;  although 
the  party  claiming  under  the  second  assignment  knew,  when 
it  was  executed,  of  the  prior  execution  of  the  fost  assign- 
ment (jt?).  So  a  mortgage  of  leaseholds  in  Middlesex,  which 
is  registered  there  before  a  prior  judgment  obtained  against 
the  mortgagor,  and  registered  in  the  Common  Pleas  (but 
not  in  Middlesex  until  after  the  mortgage),  will  take  pre- 
cedence of  the  judgment  and  any  elegit  thereon  (5^).     The 

enrolment  of  a  lease  granted  by  the  Duke  of  Corn- 
[*195]  wall  is  evidence  in  the  same  *  manner  as  if  it  had 

been  granted  by  the  crown,  when  there  is  no  Duke 
of  Cornwall  (r). 

Elaborate  provisions  have  been  made  by  the  Land  Registry 
Acts  of  1862  (25  &  26  Vict.  c.  53),  and  subsequently  by  the 

(o)  TJeg.  V.  Registrar  of  Middlesex,  (r)  Rowe  v.  Brcnton,  8  B.&.  C.  755. 

15  Q.  B.  976.  In  the  Ducliy  of  Lancaster,  see  Kin- 

(/')  Doe  d.  Robinson   v.  Allsop,  5  nersley  v.  Orpe,  1   Doug.  56.     As  to 

B.  &   A.    142;    Elscy    v.    Lutyens,   8  registration  of   conveyances,  see  Le 

Hare,  159;    Warbiirton  i-.  Loveland,  Neve  t'.  Le  Neve,  3  Atk.  651;  Ambl. 

3  Dow.  &  CI.  480 ;  Carlisle  v.  Whaley,  436  ;  Hine  v.  Dodd,  2  Atk.  275  ;  Jol- 

L.  R.,  2  II.  L.  Cas.  391.  land    v.    Stainbridge,    3    Ves.    478; 

(7)  Westbrook  v.  Blytli,  3  E.  &  B.  Morecock  v.  Dickens,  Ambl.  678. 
737 ;  23  L.  J.,  Q.  B.  386. 

316 


Ch.  V.  S.  16.]     COSTS  OF  LEASE  AND  COUNTERPART.    *195 

Land  Registry  Act  of  1875  (38  &  39  Vict.  c.  87),  wliicli 
supersedes  it,  for  the  registration  of  titles  generally;  but 
these  acts,  unlike  the  particular  acts  above  referred  to,  are 
simply  permissive.  The  Middlesex  and  Yorkshire  Registra- 
tion Acts  do  not  apply  to  land  registered  under  either  of  the 
general  acts  (.s-).  Leasehold  land  may  not  be  registered 
under  the  act  of  1875,  unless  it  be  held  under  a  lease  which 
is  either  immediately  or  mediately  derived  out  of  land  of 
freehold  tenure  (sect.  2).  Sects.  34-39  refer  to  the  trans- 
fer of  leases,  and  sects.  50,  51  to  notice  of  leases. 


Sect.  16.  —  Costs  of  Lease  and  Counterpart. 
(a)  B^  whom  payable. 

Costs  of  lease  and  counterpart.  —  The  lease  and  counter- 
part are  usually  prepared  by  the  lessor's  solicitor  on  behalf  of 
both  parties ;  but  frequently  the  draft  lease  is  settled  and 
approved  of  by  the  lessee's  own  solicitor;  who  sometimes 
claims  the  right  to  engross  the  counterpart  (^),  which  how- 
ever seems  unusual  and  improper.  The  costs  of  survej'or's 
charges  and  counsel's  fees  for  advising  on  title,  &c.,  will  not 
be  allowed  as  part  of  the  costs  of  the  lease  (7a).  In  the 
absence  of  any  express  stipulation  to  the  contrary,  the  ex- 
pense of  the  lease  falls  upon  the  lessee,  and  of  the  counter- 
part upon  the  lessor  (a:),  and  the  lessee  frequently  agrees  to 
pay  all  the  expenses  of  both  lease  and  counterpart. 

By  whom  solicitor  employed.  —  The  lessor's  solicitor,  when 
lie  acts  for  both  parties,  should,  in  the  first  instance,  take 
care  to  be  emploijed  by  the  lessee  to  act  on  his  beliaJf  in  the 
preparation  of  the  deeds,  so  that  he  may  recover  the  amount 
of  his  charges  from  him,  whether  the  negotiation  for  a  lease 
goes  off  or  is  completed.     Slight  evidence  of  such  employ- 


es) Act  of  18(32,  s.  104;  Act  of  90;  L.  R.,  1  C.  P.  441;  34  L.  J.,  C. 
1875,  s;  127.  P.  201;  35  1(1.  141. 

(t)  Forster  v.  Rowland,  7  H.  &  N.  (x)  Jennings  v.  Major,  8  C.  &  P. 

103;  SOL.  ,T.,  Ex.  396.  61. 

(m)  Lock  V.  Furze,  19  C.  B.,  N.  S. 

317 


*196  THE  LEASE.  [Ch.  V.  S.  16. 

ment  is  generally  sufficient  (j/).  If  tlie  solicitor  of  the 
lessor,  who  is  not  the  solicitor  for  the  lessee,  nor 
[*196]  employed  by  him  on  the  particular  *  occasion,  pre- 
pares the  lease  and  counterpart,  he  must  look  to  his 
own  client,  the  lessor,  for  payment  of  his  charges ;  and  the 
lessor,  having  paid  them,  may  sometimes  recover  the  amount 
from  the  lessee,  under  the  special  agreement  entered  into  be- 
tween them,  or  as  money  paid  to  his  use,  at  his  request  (z). 
When  a  proposed  lease  goes  off,  it  is  sometimes  very  impor- 
tant to  ascertain  correctly  who  is  directly  liable  to  the  solici- 
tor, because  such  party,  after  paying  the  amount,  may  have 
no  remedy  over  against  the  other,  by  reason  that  the  failure 
of  the  negotiation  was  attributable  to  him  rather  than  to  the 
other  party;  or  that  there  was  not  a  complete  contract  in 
writing  sufficient  to  satisfy  the  Statute  of  Frauds  (a).  It  is 
always  a  question  for  the  jury  by  whom  the  solicitor  was 
employed  (Z*) :  and  he  should  take  care  to  secure  in  the 
first  instance  sufficient  evidence  of  such  employment  by  the 
lessee.  Sometimes  the  charges  of  the  lessor's  solicitor  may 
be  taxed  at  the  instance  of  the  lessee,  even  after  they  have 
been  paid  (c). 

(b)  Scale  of  Solicitors'  Charges. 

Solicitors'  Remuneration  Order.  —  The  Solicitors'  Remunera- 
tion Order,  1882,  of  which  so  much  as  applies  to  leases  and 
agreements  for  leases,  is  set  out  in  the  Appendix  to  this 
work  ((?),  prescribes  a  scale  of  remuneration  to  solicitors  (e) 

(//)  TVchb  ;•.  Khodcs,  3  Bing.  N.  C.  {d)  See  post,  Appendix  A.  sect.  13. 

732;  Smith   u.  CIcgg,  27  L.  J.,  Ex.  As  to  agreements  for  leases,  see,  also, 

300.  Ch.  IV.  sect.  8,  ante. 

(z)  Grissell  v.  Robinson,  3  Bing.  N.  (e)  By  s.   (iO   of   the   Stamp  Act, 

C.  10,  10;  Baker  v.  Merywoatlier,   2  1870,  every  person,  not  being  a  bar- 

C.  &  K.  737.  rister,  solicitor,  or  conveyancer,  &c., 

{n)  20  Car.  2,  c.  3,  s.  4 ;  Forster  v.  who  "  draws  or  prepares  any  instru- 

Rowland,  7   II.  &  N.   103;  30  L.  J.,  ment    relating    to    real   or   personal 

Ex.  '-V.r,.  estate  shall  forfeit  50/.,  but  by  par.  2 

(/;)  Wilkinson  ?'.  Grant,  18  C.  B.  b,  of  the  same  section,  it  is  provided 

310,  320;  .Smith   ?'.  Clegg,  27  L.  J.,  that   the   term  "instrument"  in   the 

Ex.  300.  section  does  not  include  "  agreements 

{r.)  In  re.  Newman,  L.  K.,  2  Ch.  707  ;  underhand  onl3^" 
30  L.  J.,  Ch.  813. 

318 


Ch.  V.  S.  17.]  ENTRY   OF   LESSEE.  *197 

for  preparing,  settling,  and  completing  lease  and  counterpart. 
By  this  scale,  if  the  lease  be  at  a  rack-rent,  the  charges  are 
limited  to  11.  10s.  on  a  rental  not  exceeding  lOOZ.  (but  not 
less  in  any  case  than  51.'),  and  on  a  rental  exceeding  lOOZ.,  to 
71.  10s.  on  the  first  100/.,  and  21.  10s.  more  on  each  additional 
100?.,  and  on  a  rental  exceeding  500/.  to  11.  10s.  on  the  first 
100/.  and  21.  10s.  more  on  each  additional  100/.  up  to  500/., 
and  1/.  more  on  each  additional  100/.  The  lessee's  solicitor 
may  charge  one-half  the  above.  A  solicitor  concerned  for 
both  parties  "  is  to  charge  the  lessor's  solicitor's  charges,  and 
one-half  of  that  (^sic)  of  the  lessee's  solicitor." 

Stamps  and  disbursements.  —  The  above  scale  "  is  not  to 
include  stamps,  counsel's  fees,  or  other  disbursements  reason- 
ably and  properly  paid  (/)."  It  applies  only  to  completed 
transactions  (ff}. 

*Sect.  ll.—Entnj  of  Lessee.  [*197] 

Interesse  Termini.  —  Before  entry  a  lessee  for  years  has  at 
common  law  o\\\j  an  interesse  termini  (an  interest  of  a  term), 
and  no  possession.  He  cannot  before  entry  maintain  an  action 
of  trespass  (^) ;  but  he  may  maintain  ejectment  (A),  or  he 
may  assign  his  interest,  and  his  assignee  may  enter,  or  main- 
tain ejectment  (i).  If  a  lease  be  so  framed  as  to  be  a  bar- 
gain and  sale  under  the  Statute  of  Uses,  the  possession  is 
immediately  executed  in  the  lessee,  without  actual  entry  (Jc). 
In  Neale  v.  Mackenzie  premises  were  demised  by  parol  for  a 
year.  The  lessee  accepted  the  lease,  and,  by  virtue  of  the 
demise,  entered  upon  the  demised  land.  Before  and  at  the 
time  of  the  demise,  eight  acres  included  in  it  had  been 
demised  to  a  third  party,  in  whose  possession  they  were,  so 
that  the  lessee  could  not,  and  did  not,  enter  upon  them.  It 
Avas  held  that  the  latter  demise  was  wholly  void  as  to  the 

(/■)  Rule  4.  5.53;  Harrison  v.  Blackburn,  17  C.  B., 

(ff)  Rule  2  (b).  N.  S.  078;  Cole  Ejec.  287. 

(r/)    Co.   Lit.   296    b  ;    Wlieelcr   v.  (A)  Cole  Ejec.  72,  287,  459 ;  Doe  d. 

Montefiore,  2  Q.  B.  133,  156  ;   Tur-  Parsley  v.  Day,  2  Q.  B.  156 ;  Ryan  v. 

ner  v.   Cameron's   Steam   Coalbrook  Clark,  14  Q.  B.  73 ;  7  D.  &  L.  8. 

Coal   Co.,   5    Ex.   932;    Lichfieia   r.  (/)  8  &  9  Vict.  c.  106,  s.  6. 

Ready,  Id.  939;    Lowe   v.  Ross,  Id.  (A)  2  Blac.  Com.  270. 

319 


*198  THE   LEASE.  [Ch.  V.  S.  18. 

eight  acres,  and  that  the  rent  was  not  apportionable,  and 
could  not  be  distrained  for,  the  impediment  of  the  lessee 
taking  possession  not  being  analogous  to  an  eviction  by  an 
elder  title  (?).  So  Avhere  the  tenant  could  not  obtain  posses- 
sion of  part  of  the  premises  demised,  it  was  held  an  action  of 
covenant  could  not  be  maintained  by  the  lessor  against  the 
lessee  for  the  rent,  as  in  such  an  action  it  could  not  be 
apportioned  (m).  The  interesse  termini  is  in  the  lessee, 
whether  the  lease  be  made  to  commence  immediately  or  at  a 
future  day  (n). 

Sect.  18. — Void  or  Voidable. 

Davenport  v.  The  Queen.  —  When  a  lease  contains  a  proviso 
or  condition  that  on  breach  of  an}^  of  the  covenants,  the  lease 
"shall  cease,  determine,  and  be  utterly  void,  to  all  intents 
and  purposes  whatsoever,"  such  words  will  be  construed  to 
mean  void  at  the  election  of  the  lessor  (o).  This  has  been  held 
in  a  series  of  cases,  affirmed  by  the  Judicial  Committee  of 

the  Privy  Council  in  Davenport  v.  The  Queen  (jd). 
[*198]  The  lessee  will  not  be  allowed  *  to  take  advantage  of 

his  own  wrongful  act  or  omission,  and  to  say  that 
thereby  the  lease  lias  become  void  (g).  The  lessee  must  do 
some  act  evidencing  his  intention  to  enter  for  the  forfeiture 
and  determine  the  lease  (?•)  ;  and  the  lease  will  be  avoided 
from  that  time  only  ;  but  previous  arrears  of  rent  may  be 
sued  for,  although  upon  re-entry  the  lessor  is  to  have  the 
premises  again  "as  if  the  said  indenture  had  never  been 
made  "  (s).  The  subject  of  forfeiture  is  further  considered 
hereafter  (Chap.  VII J.,  Sect.  5). 

(0  Ncale  V.  Mackenzie,  1   M.  &  W.  (7)  Kcde  v.  Farr,  6  M.  &  S.  121 ; 

747.  Doe  (/.  Rryan  v.  Bancks,  4  B.  &  A. 

(/h)  Iloltrate  V.  Kay,  1  C.  &  K.  341.  401  ;  Arnshy  r.  Woodward,  0  B.  &  C. 

(n)  Com.  Dip.  tit.  Estate  (G.  14);  510;  Roberts  r.  Davey,  4  B.   &  Ad. 

Lock  V.  Furze,  10  C.  B.,  N.  S.  00,  lO.'l,  (K54  ;  Doe  d.  Nash  v.  Bircli,  1  M.  &  W. 

105;  L.  R.,  1  C.  V.  441  ;  .^,4  L.  J.,  C.  402;  Reid  v.  Parsons,  2  Chit.  R.  247. 

P.  201;  35  Id.  141.  (j)  Roberts  v.  Davcy,  4  B.  &  Ad. 

(0)  Roberts  v.  Davey,  4  B.  &  Ad.  007;  Arnsby  r.  Woodward,  0  B.  &  C. 

fi67;  Pennintrton  r.  Cardale,  3   II.  &  510;  Yonn  d.  Mattliews  v.  Smart,  12 

N.  650;   IIu-lus  r.  Pahner,  10  C.  B.,  East,  444,  451  ;   Baylis  1:  Le  Cros,  4 

N.  S.  30:5,  404,  407  ;  Cob"  Kjec.  408.  C.  B.,  N.  vS.  5:'.7. 

O)  L.  R.,  3  A])i).  Ca.  at  p.  128.  (n)  Hartsliorne  v.  ■\Vatson,  4.  Ring. 

320 


Cii.  V.  S.  18.]  VOID   OR   VOIDABLE.  *198 

Fraud.  —  Where  a  lease  was  granted  to  a  man  on  his  f  raud- 
vilent  representation  that  he  intended  to  use  the  premises  for 
carrying  on  a  hiwful  trade,  he  intending  at  the  time  to  use 
them,  and  afterwards  using  them,  as  a  brothel,  the  represen- 
tation being  collateral  to  the  agreement,  was  held  not  to 
avoid  the  lease  (t}. 

Illegality.  —  Where  a  lessee  intending  to  assign  knew  that 
the  intended  assignee  took  the  premises  for  the  purpose  of 
using  them  as  a  brothel  (notwithstanding  an  express  cove- 
nant therein  contained  not  so  to  use  them),  the  transaction 
was  held  void,  so  as  to  prevent  the  lessee,  who  had  paid  for 
dilapidations  to  the  lessor,  from  recovering  the  money  so  paid 
from  the  assignee  under  the  indemnity  clause  of  the  assign- 
ment, and  it  was  said  that  no  rent  or  damages  for  breaches  of 
covenant  would  have  been  recoverable  upon  an  underlease 
executed  before  the  assignment  (w).  In  covenant  for  rent 
it  is  a  good  defence  that  the  premises  were  demised  by  the 
plaintiff  to  the  defendant  for  the  express  purpose  of  being 
used  for  boiling  oil  and  tar,  contrary  to  the  provisions  of  the 
Building  Act  (.r). 

"What  avoids  a  lease,  erasure,  &c.  —  A  lease  by  deed  may  be 
avoided  by  matter  ex  post  facto,  as  by  erasure,  interlineation 
or  otheral  teration  in  any  material  part  (^).  The  same  rule 
extends  to  a  lease  not  by  deed,  and  it  has  been  held  that  the 
addition  by  a  stranger  of  a  seal  to  a  written  instrument  will 
avoid  it  (2).  A  deed  executed  with  blanks  in  material  parts, 
whereby  it  is  incapable  of  having  any  operation,  and  after- 
wards  filled   up    and   delivered   by  another   person,  in   the 

N.  C.  178 ;  Load  v.  Green,  15  M.  &  were  intended  to  be  used  for  blasphe- 

W.  210,  223;  Selby  v.  Browne,  7  Q.  mous  lectures. 

B.  620;  Franklin   v.  Carter,   1   C.  B.  (m)  Smith  v.  White,  L.  R.,  1  Eq. 

750;  3D.  &L.  213;  Johns  f.  White-  626;  35  L.  J.   Ch.,   454.     See,   also, 

ly,  3  Wils.  127 ;  Att.-Gen.   v.  Cox,  3  Jenning    i-.    Throgmorton,    Ry.    and 

H.  L.  Cas.  240.  Mood.  251,  and  post,  Ch.  vi.  Sect.  3. 

(0  Feret  v.  Hill,  15  C.  B.  207.     As  (x)    Gas    Light    Co.    v.   Turner,    7 

to  plea  of  fraud  to  an  action  for  not  Scott,  779;  8  Id.  609  ;  5  Bing.  N.  C. 

granting  a   lease,    see    Calvaleiro    v.  666;  6  Id.  324. 

Paget,  4  F.  &  F.  537  ;  and  as  to  plea  ( y)  Pigot's  case,  11  Co.  R.  27  ;  Bull, 

of  illegality,  see  Cowan  ?;.  Milbourn,  N.  P.  267;  2  Blac.  Com.  308;  David- 

L.  R.,  2  Ex.  230  ;  36  L.  J.,  Ex.  124 ;  son    r.     Cooper,    13    M.    &   W.   352 

in  which   case  it  was  held  to   be   a  (Exch.). 

defence  that  rooms  agreed  to  be  let  (c)  Davidson  v.  Cooper,  supra. 

321 


*199  THE  LEASE.  [Ch.  V.  S  18. 

[*199]  absence  of  the  party  who  has  *  executed,  and  unau- 
thorized by  instrument  under  seal,  is  invahd  (a).  If  a 
deed  be  altered  by  a  stranger  in  a  point  not  material,  the  deed  is 
not  avoided  ;  but  it  is  otherwise  if  it  be  altered  by  a  stranger  in 
a  point  material ;  for  the  witnesses  cannot  prove  it  to  be  the  act 
of  the  party  where  there  is  any  material  difference  :  an  imma- 
terial alteration,  however,  does  not  change  the  deed,  and 
consequently  the  witnesses  may  attest  it  without  danger  of 
perjury;  but  if  the  deed  be  altered  by  the  party  himself, 
though  in  a  point  not  material,  yet  it  avoids  it,  for  the  law 
takes  every  man's  act  most  strongly  against  himself. 

Altered  deed.  —  It  is  material  to  observe  that  an  altered 
deed,  although  the  covenants  in  it  cannot  be  sued  upon,  may 
be  good  evidence  to  show  the  estate  which  passed  by  it,  and 
which  was  not  divested  by  these  alterations  (ft).  Where,  by 
agreement  between  plaintiff  and  defendant,  a  house,  No.  38, 
was  let  to  the  plaintiff,  and  after  the  agreement  was  exe- 
cuted and  delivered  to  the  plaintiff  the  number  was  altered 
to  35,  but  it  did  not  appear  by  whom,  No.  35  being  in  fact 
the  house  let ;  it  was  held  that  the  agreement  might  be  given 
in  evidence  in  an  action  for  an  excessive  distress,  in  which 
the  demise  was  admitted,  to  show  the  terms  of  the  hold- 
ing (e). 

Cancellation.  —  It  has  been  held  that  the  cancelling  of  a 
lease  by  the  mutual  consent  of  both  parties  does  not  destroy 
the  term  vested  in  the  lessee,  and  that,  therefore,  notwith- 
standing such  cancellation,  the  lessor  may  maintain  an  action 
of  deht  on  the  demise  for  the  recovery  of  the  rent  ((^),  and  the 
deed  may  be  given  in  evidence  to  show  that  the  estate 
passed  (e). 

(n)  ITibl.lewliitc  v.  M'Morine,  6  M.  800;  Stewart  v.  Aston,  8  Jr.  Com.  L. 

&  W.  200  ;    8   Dowl.   802.     I^ut   soe  R.,  N.  S.  35. 

EaRloton  )•.  Gutteridfrp,  11   M.  &  W.  ('0  Lord  Ward  v.  Luniloy,  5  H.  & 

465;  2  Dowl.,  N.  S.  1050.  N.  87,  (iSO ;  29  L.  J.,  Ex.  a22. 

(/>)  Davidson  v.   Cooper,   11    M.   &  (e)  The  Agricultural  Cattle  Insnr- 

W.  at  p.  800;  Stewart  v.  Aston,  8  Ir.  ance  Co.  v.  Fitzgerald,  10  Q.  B.  402; 

Com.  L.  R.,  N.  S.  .35;    Doe  d.   Cour-  Stewart  v.  Aston,  supra;  Itoe  d.  Karl 

tail  u.  Thomas,  9  R.  &  C.  288;  West  of  Berkeley  v.  Arclibp.  of  York,  6 

V.  Steward,  14  M.  &  W.  47.  East,  80. 

(c)  Hutchins  v.  Scott,  2  M.  &  W. 

322 


Cn.  V.  S.  19.]  LEASES   UNDER   POWERS.  *200 

Sect.  19. — Leases  under  Powers  (/)• 
(a)  Generally. 

Construction  of  powers.  —  The  rules  for  the  construction  of 
powers  of  leasing  settled  land  have  been  variously  laid  down 
by  different  judges,  who  have  severally  declared  that 
they  must  be  construed  strictly  (^),  liberally  (A),  *  in-  [*200] 
differently,  without  leaning  to  either  side  (i) ;  equi- 
tably in  favour  of  the  donee  (A;),  favourably  for  the  donee  (V)  ; 
strictly  for  the  tenant  for  life,  and  liberally  for  the  remainder- 
man (m).  It  seems,  however,  to  be  agreed  that  powers  must 
be  construed  according  to  the  intention  of  the  parties  (n)  ; 
and  so  that  the  estate  itself,  which  is  subjected  to  the  power, 
shall  not  be  destroyed  by  the  exercise  of  it  (o).  It  is  the 
duty  of  the  court  to  support  a  power,  if  possible,  and  to  give 
effect  to  its  execution,  if  it  is  not  exercised  from  improper 
motives  or  for  improper  objects  (/>). 

Statutes  as  to  powers.  —  Many  formal  defects  in  leases 
under  powers  have  been  remedied  by  12  &  13  Vict.  c.  20, 
as  amended  by  13  Vict.  c.  17  (^) ;  and  a  substantial  altera- 
tion of  the  law  of  leasing  settled  land  has  been  effected  by 
the  Settled  Land  Act,  1882  (45  &  46  Vict.  c.  38),  which  by 
conferring  detailed  powers  of  leasing  upon  a  tenant  for  life 
independently  of  his  trustees,  has  greatly  diminished  the 
importance  of  the  cases. 

Settled   Land  Act.  —  The    Settled   Land  Act,  1882,  is  by 

(/)  See   Sugden   (Lord  St.  Leon-  (/I)  Ward  v.  Hartpole,  3  Bligh,  470, 

ards)  on  Powers,  711-835  (8th  ed.),  485. 

A.D.  1861,  and  see,  also,  Farwell  on  (/)  0.  Bridgm.  by  Bann,  90,  93. 

Powers,  A.  D.  1874.  (m)  Orby  v.  Mohmn,  Gilb.  Eq.  Rep. 

((7)  Fitzwilliam's  case,  6  Rep.  32;  58;  Taylor    d.   Atkyns    v.    Horde,    1 

Taylor  d.  Atkyns  v.  Horde,  2  Smith  Burr.  60,  125;  2  Smith  L.  C. 

L.  C.  495;  Doe  d.  Pulteney  v.  Cavan,  (n)  Goodtitle  v.  Funucan,  2  Doug. 

5  T.  R.  567  ;  6  Bro.  P.  C.  175.  573,  574 ;  Hawkins  v.  Kemp,  3  East, 

{h)  Right  d.  Bassett  v.  Thomas,  3  441 ;  Doe  i\  Rendle,  3  M.  &  S.  99;  1 

Burr.   1441;    1   W.  Blac.   446;    and  Piatt  on  Leases,  397,398. 

cases   cited   arguendo    in    Vivian   ?'.  (0)    Powell  on  Powers,  407 ;  Sug. 

Jegon,  L.  R.,  3  PI.  L.  Cas.,  at  p.  288.  Pow.  730;  Winter  v.  Loveday,  Carth. 

{i)   Goodtitle  d.  Clarges  v.  Funu-  428. 

can,   2  Doug.  573;    Doe  d.  Earl  of  {p)  Carver  v.  Richards,  29  L.  J., 

Jersey  v.  Smith,  7  Price,  313.  Ch.  357  ;  6  Jur.,N.  S.  410. 

(9)  See/?osf,  sub-s.  {g). 

323 


*201  THE  LEASE.  [Ch.  V.  S.  19. 

s.  2  retrospective,  that  is,  it  applies  whether  a  settlement 
of  the  land  were  made  before  or  after  the  commencement  of 
the  act  (although  of  course  a  bad  lease  made  before  the  com- 
mencement of  the  act  does  not  become  good  by  vij-tue  of  the 
act  through  having  anticipated  its  provisions) ;  and  by  ss.  50 
and  51  a  contract  by  a  tenant  for  life  not  to  exercise  the 
powers  of  the  act  is  void,  and  so  is  any  prohibition  or  limita- 
tion in  the  settlement  to  a  similar  effect.  AVhat  the  leasing 
powers  of  a  tenant  for  life  under  the  act  are,  we  have  already 
seen  (r)  :  and  it  need  only  be  added  here,  that  by  s.  54,  a 
lessee  dealing  in  good  faith  with  the  tenant  for  life  is  as 
against  all  remainder-men  conclusively  taken  to  have  given 
the  best  rent  that  could  reasonably  be  obtained ;  that  by  s. 
56  the  power  of  the  act  are  cumulative,  but  prevail  over  the 
powers  of  a  settlement  in  any  case  of  conflict  between  them ; 
and  that  by  s.  57  a  settler  may  confer  either  on  a  tenant  for 
life  or  trustees  any  powers  additional  to  or  larger  than  those 
conferred  by  the  act. 

Cases  prior  to  act.  —  Prior  to  the  Settled  Land  Act,  it  was 
held  in  Vi%-ian  v.  Jegon  (s)  that  a  general  power  to  a  tenant 
for  life  to  lease  mines  did  not  imply  a  power  to  lease  beyond 
the  life ;  but  that  powers  to  lease  for  lives  or  years  might 
be  executed  by  a  lease,  either  absolutely  for  certain  lives, 

or  a  certain  number  of  years ;  or  conditionally 
[*201]  for  a  number  of  years  *  determinable  upon  a  life  or 

lives  (0-  Where  an  estate  was  settled  on  several 
tenants  for  life  in  succession,  with  remainders  in  tail,  with 
power  to  every  tenant  for  life  to  make  leases  of  all  or  any 
part  of  the  demesne  lands  for  not  more  than  twentj'-one 
years,  or  for  one,  two,  or  three  life  or  lives :  it  was  held,  first, 
that  the  power  only  authorized  either  a  chattel  lease  not 
exceeding  twent3''-one  years,  or  a  freehold  lease  not  exceed- 
ing three  lives :  and  that  a  lease  by  a  tenant  for  life  for 
ninety-nine  years  determinable  on  lives,  as  it  might  exceed 
twenty-one  years,  was  void  at  law,  and  was  not  even  good  pro 


(r)  Ante,  Ch.  I.,  sect.  4.  (t)  Commons  v.  Marshall,  6  Bro.  P. 

(s)  L.  R.  3  H.  L.  285.  C.  168;  Sug.  Pow.  409,  737. 

324 


Cu.  V.  S.  19.]  LEASES   UNDER   POWERS.  *201 

tanto  for  tlie  twenty-one  years  (?*).  Where  by  a  marriage 
settlement  the  husband  had  the  wife's  estate  for  life,  with  a 
power  to  grant  leases  for  twenty-one  years,  but  no  longer ; 
and  in  breach  of  the  power  he  granted  a  lease  to  A.  for 
ninety-nine  years,  determinable  upon  lives ;  and  the  wife 
survived  him,  and  conveyed  the  fee  to  B. :  and  in  the  con- 
veyance was  recited  the  lease  to  A.,  who  was  recognized  as 
being  then  tenant  in  possession  of  the  estate,  at  the  yearly 
rent  reserved:  on  an  action  of  ejectment  brought  by  B. 
against  the  assignee  of  the  lease,  it  was  held  that  the  lease 
was  void,  and  the  recital  only  matter  of  description  (a;). 

"  Reasonable  and  proper  "  leases.  —  Under  a  power  to  lease 
for  years  or  lives,  with  or  without  covenants  for  renewals, 
leases  for  999  years  were  held  valid  (y),  and  in  Mostyn  v. 
Lancaster  (2)  a  power  to  grant  such  mining  leases  as  should 
seem  "  reasonable  and  proper  "  was  held  to  authorize  a  lease 
of  mines  for  ninety-nine  years  at  a  peppercorn  rent  by  way 
of  mortgage  to  secure  an  advance  to  the  tenant  for  life. 

Lease  less  than  authorized.  —  A  man  having  a  power  may 
do  less  than  such  power  enables  him  to  do.  A  lease  for 
fourteen  years  is  warranted  by  a  power  to  lease  for  twenty- 
one  years  (a).  A  power  to  lease  for  any  term  or  number 
of  years  certain,  not  exceeding  twenty-one  years,  will  war- 
rant a  lease  for  twenty-one  years  determinable  at  the  option 
of  the  lessee  at  the  end  of  the  first  seven  or  fourteen 
years  (5).  A  power  to  lease  for  three  lives  may  be  executed 
by  a  lease  for  two  lives  ((?).  A  power  to  lease  for  any  term 
not  exceeding  three  lives  and  forty-one  years  will  warrant 
a  lease  for  three  lives  and  forty-one  years  to  commence  from 
the  1st  of  November  preceding  the  day  of  the  death  of  the 
survivor  of  the  cestuis  que  vie  (d). 

{u)  Eoe  d.  Brune  v.  Prideaux,  10  («)  Isherwood  v.  Oldknow,  3  M.  & 

East,  158 ;  Sug.  Fow.  738.  S.  382 ;  Easton  v.  Pratt,  2  H.  &  C. 

(x)  Doe  d.  Briggs  v.  White,  2  D  &  676 ;  33  L.  J.,  Ex.  233. 

R-  716.  (b)  Edwards  v.  Milbank,  4  Drew. 

(y)  Sheehy  v.  Lord  Muskerry,  1  H.  606 ;  29  L.  J.,  Ch.  45 ;  Sug.  Pow.  742. 

L.  Cas.  576.  (c)  Sug.  Pow.  746,  pi.  26. 

(s)L.  R.,  23  Ch.  D.  583;  52  L.  J.,  (d)   Re    Crommollin   Estate,   1   Ir. 

Ch.848;  48L.  T.  715;  31  W.  R.  686,  Com.  L.  R.,  N.   S.   182;  Sug.  Pow. 

C.  A.,  affirming  Bacon,  V.-C.  746. 

325 


*202  THE  LZASE.  [Ch.  T.  S.  19. 

Building  and  repairing  leases.  — A  tenant  for  life, 
[*202]  having  a  power  to  grant  building  leases  for  *  sixty- 
one  years,  reserving  the  best  improved  ground  rent, 
granted  a  lease  for  that  term,  which  was  not  expressed  to 
be  a  building  lease,  but  which  contained  a  covenant  by  the 
lessee  to  keep  in  repair  the  premises  demised  (old  houses) 
or  such  other  ••  house  as  should  be  built  duringr  the  term : '' 
it  was  held,  that  this  was  not  a  buildinor  lease  within  the 
power,  and  that  such  a  lease  being  granted  by  tenant  for 
life,  who  had  a  bare  naked  power  without  any  legal  interest, 
"was  void,  and  not  capable  of  being  confirmed  by  acceptance 
of  rent  by  the  remainder-man  («?).  So  a  power  to  grant  long 
leases  "for  the  purpose  of  new  building  or  effectually  re- 
building and  repairing  any  messuage.  &c..  being  or  to  be  on 
the  premises,"  was  held  to  be  not  well  executed  by  a  lease 
containing  a  covenant  effectuaUy  to  repair,  as  it  is  not  equiv- 
alent to  a  covenant  efectually  to  rebuild  and  repair  (/). 
But  a  power  to  grant  leases  for  twenty-one  years,  or  build- 
ing or  repairing  leases  for  sixty-one  years,  is  well  executed 
bv  a  lease  for  fortv  vears  containinor  the  usual  covenants 
to  repair  and  keep  in  repair  the  demised  premises,  and  so 
to  leave  them  at  the  end  of  the  term  (</).  Upon  a  power 
to  grant  building  leases,  such-  a  lease  expressly  exempting 
the  lessee  from  rebuilding  in  case  of  fire,  and  by  another 
clause  enabling  him  to  surrender  the  lease  upon  notice, 
could  not  be  sustained  (K). 

Sporting  rights.  —  A  power  to  demise  lands  or  any  part  of 
them  is  not  well  executed  by  a  demise  of  part  with  liberty  of 
shooting  over  the  whole  (0-  But  the  right  to  shoot  and  fish 
over  the  lands  demised  may  be  excepted  and  reserved  to  the 
lessor  and  hLs  assigns  (h^. 

Effect  of  charges.  —  If  a  tenant  for  life  with  a  power  to 
grant  leases  in  possession  for  twenty-one  years  at  the  best 
rent,  convey  his  life  estates  to  trustees  to  pay  an  annuity  for 

(e)  Jones  d.  Cowper  r.  Vemer,  (h)  Sag.  Pow.  743;  Stiles  r.  Cow- 
Willes,  169;   Sag.  Pow.  7.38.              '  per,  3  A tk.  692. 

(f)  r>oe  d.  Dymoke  r.  Withers,  2  (i)  D*vrell  c.  Hoare,  12  A.  &  E. 
B.  it  Ad.  896.  3-56. 

(q)  Easton  r.  Pratt,  2  H.  i  C.  676 ;  (l)  Goodtitla  r.  Fanacan,  2  Doug. 

33  L  J,  Ex.  233.  o*>>. 

326 


Ch.  V.  S.  19.]  LEASES   UNDER   POWERS.  *203 

his  life,  and  the  surplus  to  himself,  the  power  is  not  thereby 
extinguished,  but  he  may  still  grant  a  lease  agreeable  to  the 
terms  thereof  (Q.  If  a  man  having  a  power  annexed  to  his 
estate,  charge  his  estate,  and  afterwards  execute  his  power, 
the  estate  which  rises  by  the  execution  of  the  power  is  sub- 
ject to  the  charge  during  the  estate :  as  if  a  tenant  for  life, 
with  power  to  make  leases,  grant  a  rent-charge,  and  after- 
wards make  a  lease,  the  lessee  takes  subject  to  the  rent- 
charge  during  the  life  of  the  lessor  (>»). 

In  whom  powers  may  vest.  —  If  the  power  be  to  a  man  and 
his  assigns  to  make  leases,  &c.,  it  may  be  exercised  toties 
quoties  (/i),  and  will  run  with  the  estate  to  the  assignee 
in  deed  or  in  law,  and  go  to  his  executor,  or  to  the 
assignee  *  of  the  executor  (o)  ;  or  to  his  heir,  together  [*203] 
with  the  estate  (je>).  It  is  no  objection  to  a  lease 
under  a  power,  that  it  is  in  trust  for  him  who  executes  the 
power ;  j^rovided  the  legal  tenant  be  bound  during  the  term 
in  all  requisite  covenants  and  conditions  (^).  But  where  by 
a  marriage  settlement  a  power  was  given  to  the  wife,  after 
the  death  of  her  husband,  to  grant  leases  for  twenty-one 
years,  reserving  the  best  rent,  &c.,  it  was  held  that  a  lease 
by  the  wife  to  a  second  husband  was  not  a  good  execution 
of  the  power  (r).  Where  trustees  are  invested  with  a  power 
of  leasing,  they  must  exercise  it  in  like  manner  as  a  trust  to 
let  (s).  Where  devisees  in  trust,  with  discretionary  powers, 
disclaim,  and  the  trust  estate  descends  to  the  heir,  he  cannot 
exercise  any  of  the  discretionary  powers,  such  as  granting 
leases,  &c.  (^).     Where  the  heir  of  a  surviving  trustee  is  the 


(/)    Ren    d.    Hall   v.   Bulkeley,   1  ed.) ;  Wilson  v.  Sewell,  1   W.  Blac. 

Doug.  292,  565.  617;  4  Burr.  1975;  Earl  of  Cardigan 

(m)  Sabbarton  v.  Sabbarton,  Cas.  v.  Montague,  Sug.  Pow.  918;  Bevan 

temp.  Hardw.  415.  v.  Habgood,  1  Johns.  &  H.  222 ;  30  L. 

(n)  Sug.  Pow.  718.  J.,  Ch.  107. 

(o)  How  V.  Whitfield,  1  Ventr.  340 ;  (r)  Doe  d.  Hartridge  v.  Gilbert,  5 

Freeman,  476.  Q.  B.  423. 

(p)  Ex  parte  Cooper,  re  North  Lon-  (s)  Sutton  v.  Jones,  15  Ves.  588; 

don  R.  Co.,  34  L.  J.,  Ch.  373.  Sug.  Pow.  722. 

(q)  Taylor  d.  Atkyns  v.  Horde,  1  (t)  Robson  v.  Flight,  34  L.  J.,  Ch. 

Burr.  124;  2  Smith  L.  C.  495  (6th  226;  13  W.  R.  393. 

327 


*204  THE   LEASE.  [Ch.  V.  S.  19. 

proper  party  to  demise,  a  lease  granted  by  the  executors  of 
sucli  trustee  is  void,  and  not  cured  by  12  &  13  Vict.  c.  26  (u). 

(b)  In  Possession  or  Reversion. 

Leases  in  possession  or  reversion.  —  The  Settled  Land  Act, 
1882  (s.  7,  subsect.  6),  provides  that  leases  by  a  tenant  for 
life  under  that  act  shall  be  made  to  take  effect  in  possession 
not  later  than  twelve  months  after  date. 

In  all  well-drawn  powers  of  leasing,  where  it  was  intended 
that  a  lease  in  reversion  may  be  granted,  it  was  always 
expressly  declared  so ;  and  if  a  reversionary  lease  was  not  to 
be  granted,  it  was  expressly  declared  that  the  lease  shall  be 
made  to  take  effect  in  possession,  and  not  in  reversion,  or  by 
way  of  future  interest  (x).  Upon  a  general  power  to  make 
leases,  without  saying  more,  the  law  adjudged  that  the  leases 
ought  to  be  leases  in  possession,  and  not  leases  in  reversion, 
or  in  futuro  (z/).  Under  a  power  to  make  leases  to  one,  two 
or  three  persons,  the  donee  of  the  power  cannot  make  a  lease 
for  the  life  of  the  first  (unborn)  son  of  J.  S.  (z). 

On  what  land  they  attach.  —  If  there  be  a  power  to  make 
leases  expressly  stated  to  be  in  possession,  which  attaches 
upon  an  estate,  part  of  which  is  in  possession  and  part  in 
reversion  at  the  creation  of  the  power;  the  donee  of  the 
power  may  immediately  make  leases  in  possession  of  the 
estate  in  reversion,  as  well  as  of  that  in  possession; 
[*204]  for  in  such  case  the  word  * "  possession "  in  the 
power  refers  to  the  lease,  and  not  to  the  land  (a)  : 
but  it  seems,  that  if  a  power  enable  any  one  to  make 
leases  in  reversion  as  well  as  in  possession,  and  some  parts 
of  the  land  subject  to  the  power  be  in  possession,  and  other 
part  of  it  in  reversion,  he  cannot  make  a  lease  in  possession 
and  another  lease  in  reversion  of  the  same  land;  but  his 


(h")    Ex   parte    Cooper,    re    North  (c)  Snow  v.  Cutler,  T.  Raym.  103. 

Lonrlon  K.  Co.,  34  L.  J.,  Ch.  373.  (a)    Powell  on  Powers,  425  ;    Bac. 

(t)  Sur.  Pow.  747.  Ahr.  tit  Leases   (I.)  ;  Fox   ?'.   Prick- 

(//)    Sheecomb    v.    Hawkins,    Cro.  wood,  Cro.  Jac.  347;  2  Biilstr.  210; 

Jac.   318;   Yelv.   222;    Brown!.   148;  2   Roll.  Abr.  200,  pi.  5;    Sug.  Pow. 

Countess  of  Sussex   v.   Wrotli,  Cro.  755. 

Eliz.  6. 

328 


Cn.  V.  S.  19.]  LEASES   UNDER   POWERS.  *204 

power  to  make  leases  in  reversion  will  be  confined  to  such 
land  as  was  not  then  in  possession  (^). 

Lease  in  reversion.  —  Where  there  is  a  power  to  grant 
leases  in  possession  only,  the  lease  in  possession  is  not  con- 
trary to  the  power,  although  the  estate  at  the  time  of  grant- 
ing the  lease  was  held  by  tenants  at  will,  if,  at  the  time,  they 
receive  directions  from  the  lessor  to  pay  their  rent  to  the 
lessee,  to  which  they  assent  (e).  Where  a  tenancy  from  year 
to  year  has  expired',  but  the  outgoing  tenant  has  a  customary 
right  over  part  till  a  future  day,  a  lease  in  possession  may  be 
granted  (t?).  Where  one  under  a  power  to  lease  for  twenty- 
one  years  in  possession,  but  not  in  reversion,  granted  a  lease 
to  his  only  daughter  for  twenty-one  years,  "to  commence 
from  the  day  of  the  date  ;  "  it  was  adjudged  a  good  lease,  as 
the  word  "  from "  may  mean  either  inclusive  or  exclusive, 
according  to  the  context  and  subject-matter,  and  the  court 
will  construe  it  so  as  to  effectuate  the  deeds  of  parties,  and 
not  to  destroy  them  (f).  But  if  made  to  commence  only  a 
day  after  the  execution  of  the  lease,  it  was  not  good  at  com- 
mon law  or  in  equity  as  a  lease  in  possession  (/).  Any  such 
defect  would  now  be  cured  by  12  &  13  Vict.  c.  26,  s.  4,  if'the 
lessor  lived  till  the  day  appointed  for  the  commencement  of 
the  term.  Under  a  power  to  demise  for  twenty-one  years  in 
possession,  and  not  in  reversion,  a  lease  dated  17th  February, 
1802,  to  hold  from  the  25th  of  March  next  ensuing  the  date 
thereof,  is  good,  if  not  executed  and  delivered  till  after  the 
25th  of  March,  for  it  then  takes  effect  as  a  lease  in  posses- 
sion, with  reference  back  to  the  date  actually  expressed  (jf)  : 
but  under  a  power  to  lease  in  possession  and  not  in  rever- 
sion, a  lease  for  years  executed  on  the  29th  of  March  to  the 
then  tenant  in  possession,  to  hold  as  to  the  arable  land  from 

(V)  Bac.  Abr.  tit.  Leases  (I.  11).  Att.-Gcn.    r.    Countess    of   Portland, 

(c)  Goodtitle    d.  Clarges  v.  Funu-  Covvp.  723;  Sug.  Pow.  7(50,  761. 
can,   2   Doug.    565 ;    Bac.    Abr.    tit.  (/)  Pollard  v.  Greenvil,  1  Ch.  Gas. 
Leases  (L  11)  ;  Sug.  Pow.  7G2.  10;  1  Ch.  Rep.  184;  Doe  v.  Calvert, 

(d)  Doe  V.  Snowden,  2  W.  Blac.  2  East,  375;  Bowes  v.  East  London 
1224 ;  Doe  ;;.  Calvert,  2  East,  370 ;  W.  W.  Co.,  Jacob,  374 ;  Sug.  Pow. 
Sug.  Pow.  763.  760. 

(e)  Pugh  V.  Duke  of  Leeds,  Cowp.  (7)  Doe  d.  Coxe  v.  Day,  10  East, 
714;  Freeman  v.  West,  2  Wils.  165;  427;  Sug.  Pow.  761,  pi.  43, 

Denn    v.     Pearnside,    1   Wils,    176 ; 

329 


*205  THE   LEASE.  [Ch.  V.  S.  19. 

the  13th  of  February  preceding,  and  as  to  the  pasture  from 
the  oth  of  April  then  next,  under  a  yearly  rent  payable 
quarterly  on  the  10th  of  July,  10th  of  October,  10th  of  Jan- 
uary and  10th  of  April,  was  held  void  for  the  whole ; 
[*205]  though  such  lease  were  according  to  the  *  custom  of' 
the  country,  and  the  same  had  been  before  granted 
by  the  person  creating  the  power  (A).  But  now  any  such 
defect  would  be  cured  by  the  12  &  13  Vict.  c.  26,  s.  4,  pro- 
vided the  lessor  were  living  on  the  5th 'of  April,  and  then 
competent  to  grant  such  a  lease. 

Effect  of  existing  leases.  —  The  circumstance  of  a  second 
lease  for  years  being  granted  to  the  same  lessee  who  holds 
under  a  former  lease  (Q,  to  commence  after  the  expiration 
of  such  former  lease,  does  not  o^ierate  to  make  the  latter  a 
continuation  of  the  former  lease,  where  the  terms  are  granted 
by  different  deeds ;  although  the  residue  of  the  time  to  come 
after  the  former  lease,  together  with  the  period  for  which 
the  latter  lease  is  granted,  do  not  in  length  of  time  exceed 
the  limits  fixed  by  the  power ;  for  the  latter  will  notwith- 
standing be  considered  as  a  reversionary  lease,  as  much  as  if 
it  had  been  granted  to  a  reversioiiary  lessee  (^). 

Leases  in  possession  or  reversion.  —  If  a  man  have  power 
to  make  leases  in  possession  or  reversion,  and  he  make  a 
lease  in  possession  once,  he  may  never  afterwards  make  a 
lease  in  reversion,  for  he  has  an  election  to  do  the  one 
or  the  other,  but  not  both  (I}.  Under  a  power  to  lease 
in  possession  for  lives,  or  for  years  determinable  on  lives,  a 
man  cannot  make  an  absolute  lease  in  possession  for  j-ears ; 
but  he  may  make  an  absolute  lease  in  reversion  for  years  (I}. 
Where  powers  were  given  to  make  leases  of  present  but  not 
of  future  interest,  and  so  as  the  same  should  go  with  and  be 
incident  to  the  remainder  and  reversion  ;  a  lease  with  a 
reversion  in  execution  of  those  powers  to  the  tenant  in  pos- 
session of  the  freehold,  his  heirs  and  assigns,  was  held  good, 

C^)    Doe    d.   Allan   v.    Calvert,   2  (k)  Doe  d.  Pultoney  v.  Lady  Ca- 

East,  .370.  van,  f)  T.  R.  507  ;  Smith  v.  Day,  2  M. 

(0  As  to  the  effect  of  a  new  lease  &  W.  084. 
operating'  as  a  surrender  of  a  former  (/)  Winter  v.  Loveday,  1  Ld.  Rayni. 

lease,  acapost,  Cliap.  VIII.,  sect.  3  (b).  207  ;  2  Salk.  5.37. 

330 


Cu.  V.  S.  19.]  LEASES    UNDER   POWERS.  *206 

because  "  heirs  and  assigns "  meant  those  to  whom  the 
remainder  and  reversion  would  go  (wi)*  Where  one,  having 
power  to  make,  leases  for  twenty-one  years  in  possession, 
made  a  lease  to  A.  for  twenty-one  years  in  trust  for  the  pay- 
ment of  debts,  but  the  lease  was  made  to  commence  from  a 
time  to  come,  and  so  not  pursuant  to  the  power,  yet  being 
made  for  the  payment  of  debts,  it  was  supported  in  equity  (n). 
Most  defects  of  this  sort  would  now  be  cured  by  12  &  13 
Vict.  c.  26,  s.  4  (o). 

(c)    Umal  Covenants. 

What  are  usual  covenants.  —  What  are  usual  covenants  in  a 
lease,  under  a  power  requiring  such  covenants  is  a  question 
of  fact  for  the  jury,  and  not  for  the  court  (jt?). 
*  It  depends  on  what  are  the  usual  and  customary  [*206] 
covenants  of  the  neighborhood  (cf) :  but  it  has  been 
held,  that  what  are  the  "usual  and  reasonable  covenants" 
must  depend  on  the  leases  of  the  same  land  in  existence  at 
the  time  of  the  creation  of  the  power  (r).  Where  a  power 
to  lease  was  given  upon  reserving  the  ancient,  usual  and 
accustomed  rents,  heriots,  boons,  and  services,  a  covenant 
"  to  keep  in  repair  "  was  held  to  be  "  an  ancient  boon,"  and 
the  omission  of  it  was  deemed  fatal  (s).  Where  there  was  a 
power  to  tenant  for  life  to  lease  for  years,  with  the  usual 
covenants,  &c.,  it  was  held,  that  a  lease  made  by  him,  con- 
taining a  proviso,  that  in  case  the  premises  were  blown 
down,  or  burned,  the  lessor  sliould  rebuild,  otherwise  the 
rent  should  cease,  was  void,  the  jury  finding  such  covenant 
to  be  unusual  (t).  Where  the  settlement  creating  the  power 
does  not  require  the  usual  covenants  to  be  inserted  in  the 

(m)  Hotley  v.  Scott,  Lofft,  316.  Stephens,  6  Q.  B.  208;  Smith  v.  Doe 

(n)  Pollard  v.  Greenvil,  1  Ch.  Cas.  d.   Earl    of   Jersey,  7    Price,  281 ;  3 

10;  1  Ch.  Rep.  184.  Bligh,  290;  2  B.  &  B.  474;  Doe  J. 

(o)  Post,  subs.  {g).  Earl  of  Egremont  v.  Williams,  11  Q. 

ip)  Goodtitle  d.  Clargcs  v.  Funii-  B.  688. 

cifn,  2  Doug.   565 ;    Bennett   v.  Wo-  (s)  Earl  of  Cardigan  v.  Montague, 

mack,  3  C.  &  P.  96;  7  B.  &  C.  627;  Bug.  Pow.  918  (8th  ed.). 

Powell  on  Powers,  578.  {t)  Doe  d.  Ellis  v.  Sandham,  1    T. 

(9)   Boardman   v.  Mostyn,   6  Ves.  R.  705;  Yellowly  u.  Gower,  11  Exch. 

467,  471 ;  4  Jar.  Prec.  297  (3rd  ed.).  274. 

(?•)  Doe   d.   Earl  of   Egremont   v. 

331 


*207  THE  LEASE.  [Ch.  V.  S.  19. 

leases,  any  covenants  may  be  inserted  or  omitted,  as  agreed 
on,  provided  they  do  not  amount  to  a  fraud  on  the  power  (ii). 
Ways,  &c.  —  A  private  act  of  parliament  enabled  a  tenant 
for  life  to  grant  building  leases,  and  "'  to  lay  out  and  appro- 
priate any  part  of  the  land  authorized  to  be  leased  as  and 
for  a  Avay  or  ways,  street  or  streets,  avenue  or  avenues, 
square  or  squares,  passage  or  passages,  sewer  or  sewers, 
or  other  conveniences  for  the  general  improvement  of  the 
estate  and  the  accommodation  of  the  tenants  thereof."  A 
tenant  for  life  having  appropriated  certain  land,  and  laid  it 
out  for  a  way  for  the  general  improvement  of  the  estate,  in 
exercise  of  the  powers  of  the  act,  by  deed  granted  rights  of 
way  over  it  to  two  several  tenants :  held,  that  tenants  under 
other  leases  granted  in  pursuance  of  the  act,  but  containing 
no  grant  by  deed  of  a  right  to  use  the  way,  were  not  entitled 
by  the  provisions  of  the  act  to  use  it  (2;). 

(d)  Proviso  for  Re-entry. 

Po'wer  to  grant  -with  proviso  for  re-entry.  —  A  power  to 
tenants  for  life  to  grant  leases,  provided  that  a  right  of  re- 
entry is  reserved  for  non-payment  of  rent,  is  well  executed 
by  a  lease,  providing  a  re-entr}^  in  case  the  rent  remains  in 
arrear  fifteen  days,  and  there  is  no  siifficient  distress  upon  the 
jyremises^  the  conditional  proviso  being  the  usual  form  in 
leases  (?/).  Where  a  power  of  leasing  required  the  inser- 
tion in  the  leases  of  a  clause  of  re-entry  for 
[*207]  *  non-payment  of  rent,  and  a  lease  was  made  with  a 
proviso  for  re-entry  if  the  rent  should  be  forty-tioo 
days  in  arrear,  it  was  held  such  a  lease  was  valid  (2).  But 
a  lease  with  a  proviso  for  re-entry,  if  the  tenant  should  suffer 
the  premises  to  be  out  of  repair,  and  should  not  repair  the 


(h)  Goodtitle  f.  Funucan,  2  Doug.  ville   v.   WinRficld,    7    Price,  .343;   2 

575.  Brod.  &  B.  498,    11. ;    but  see  contra, 

(x)  White  V.  Leeson,  5  H.  &  N.  53 ;  Coxe  v.  Day,  13  East,  118. 
29  L.  .T.,  Ex.  105.  (z)  Rutland  d.  Doe  v.  Wythe,  6  M. 

(y)  Smith  v.  Doe  rf.  Earl  of  .Jersey,  &  W.  088;    12  Id.  356;  10  CI.  &  F. 

7  Price,  281 ;  3  liligh.  290;  2  Brod.  &  419. 
B.  473;  6  M.  &  S.  407  ;  Lord  Tankcr- 

332 


Cii.  V.  S.  19.]  LEASES    UNDER   POWERS.  *207 

same  tvitJun  six  months  next  after  notice,  was  held  bad,  the 
chiuse  as  to  notice  not  being  usual  (a). 

(e)  Lands  usually  let. 

"What  included  in  "  Lands  usually  let."  —  Prior  to  the  Settled 
Land  Act  the  power  of  leasing  usually  extended  to  all  the 
hereditaments  therein  comprised ;  and  if  the  mansion-house 
or  any  other  part  was  not  intended  to  be  let,  it  was  expressly 
excepted  (6).  Where  leases  were  granted  under  powers  to 
lease  lands  "  usually  demised,"  it  had  to  be  shown  by  old 
leases  or  other  satisfactory  evidence  that  the  lands  have 
usually  been  demised ;  otherwise  they  could  not  be  sup- 
ported (c).  Lands  not  demised  for  the  space  of  twenty 
years  before  the  execution  of  a  power  to  demise  at  the  rent 
then  usually  reserved  and  paid,  could  not  be  leased  under 
such  a  power  (c?).  Where  the  power  was  to  extend  to  land 
usually  demised,  it  was  held,  that  land  settled  for  years, 
determinable  on  lives,  by  a  family  settlement,  came  within 
that  description  (e)  ;  so  lands  which  have  been  previously 
let  two  or  three  times  (/),  but  not  lands  let  only  once  for 
a  short  term  (/)  ;  but  a  covenant  to  stand  seised  might 
amount  to  a  sufficient  demise  (^).  In  a  settlement  of  per- 
sonal property  the  parties  covenanted  to  settle  all  future- 
acquired  property  upon  the  same  trusts,  &c. :  held,  that  this 
authorized  the  insertion  of  a  power  to  grant  mining  leases  in 
the  settlement  of  subsequently-acquired  freeholds,  the  prior 
owner  having  granted  such  leases,  though  the  mines  had 
never  been  effectually  worked  (li). 

Lands  not  before  in  lease.  —  It  seems  to  be  settled  that  the 
question  —  whether  lands  not  before  in  lease  may  be  demised 
under  a  power  to  lease  lands  and  other  hereditaments,  pro- 

(rt)    Doe  d.  Earl  of  Egremont  v.  Vaugh.  28;  T.  Jon.  27;    Sug.  Tow. 

Burrough,  6  Q.  B.  229.  728,  729. 

(6)  Sug.  Pow.  727  (8th  ed.).     For  (e)  Right  d.  Basset  v.  Thomas,   1 

exception  in  Settled  Land  Act,  1882,  W.  Blac.  446;  3  Burr.  1441,  1448. 

see  s.  15  of  that  Act.  (  f)  2  Roll.  Abr.  2G1 ;    Sug.  Pow. 

(c)  Id.  735 ;  Earl  Cardogan  v.  Mon-  728,  730. 

tague,  Id,  918.  (7)  Right  d.  Basset  v.  Thomas,  3 

(c?)  Tristan  d.  Gore  v.  Boltinglas,  Burr.  1441,  1447;  1  W.  Blac.  446. 

(/()  Scott  V.  Steward,  27  Beav.  3QV. 


*208  THE   LEASE.  [Cii.  V.  S.  19. 

vided  that  such  rent  or  more  be  reserved  upon  every  lease 
as  has  been  reserved,  or  paid  for  it,  within  a  given  time 
previous  to  the  creation  of  the  power,  —  is  a  question  of  con- 
struction of  the  intention  of  the  author  of  the  power,  to  be 

collected  from  the  instrument  creating  the  power, 
[*208]  and  the  circumstances  of  the  estate  (i).      *  Thus, 

where  there  was  a  power  to  lease  a  manor,  except 
the  demesne  lands,  it  was  held  that  copyholds,  though 
within  the  description,  could  not  be  demised :  but  that  the 
rents  and  services  of  the  manor  might,  notwithstanding:  a 
qualification  annexed  to  the  power,  which  said  that  the 
ancient  rent  should  be  reserved,  and  there  could  be  no  reser- 
vation of  rent  upon  a  lease  of  rents  and  services  out  of  which 
no  rent  issues :  for  it  appeared  to  be  the  intent  of  the  set- 
tlement, that  part  of  the  manor  should  be  demisable  (/r). 
Under  a  power  in  a  family  settlement  to  make  leases  of  all 
or  any  part  of  the  premises,  reserving  the  ancient  rent,  lands 
always  occupied  with  the  family  seat  cannot  be  demised ; 
for  in  such  case  the  qualification  annexed  to  the  power, 
"that  the  ancient  rent  must  be  reserved,"  manifestly  ex- 
cludes the  mansion-house  and  lands  about  it  never  let :  the 
nature  of  the  thing  in  such  case  speaks  the  intent  (^). 

Whether  good  for  part  only.  —  Where  there  was  a  devise  of 
lands  to  trustees  and  their  heirs,  in  trust  to  the  use  of  a  man 
and  his  first  and  other  sons  in  strict  settlement,  remainder 
to  another  and  his  first  and  other  sons  in  strict  settlement, 
with  power  to  the  trustees  from  time  to  time,  during  the 
minorities  of  the  persons  to  whom  the  premises  should  de- 
scend, and  to  any  tenant  for  life,  to  grant  any  lease  of  all  or 
any  part  of  the  lands  so  limited,  so  as  there  be  reserved  the 
ancient  and  accustomed  yearly  rent,  ^c. :  a  lease  of  part  of 
the  lands  devised,  in  several  parcels,  in  one  of  which  parcels 
were  included,  together  with  lands  anciently  demised,  two 


(/)  rowc'll  on  Powers,  402 ;  2  Eoll.       1  L<1.  ILiym.  207  ;  2  Salk.  537  ;  Leigh 
Abr.    202;    Wakcnian    v.    Walker,   ;]       r.  Karl  of  Halcarres,  (5  C.  B.  847. 
Kob.  697;  1  Ventr.  294  ;  2  Lev.  IT/).  (/)   HafTKott   v.    Oughton,    8    Mod. 

(/•)    Loveday   r.    Winter,    5    Mod.       249;    Fortescue,    IV^2\    Goodtitlc    v. 
245,378;  12  Mod.  148;  1  Comb.  37  ;       Funuean,   2    Doup.    574.      See   also 

I'omery  v.  Partington,  3  'J\  K.  (i05. 

334 


Cii.  V.  S.  19.]  LEASES   UNDER   POWERS.  *209 

closes  never  before  demised,  at  one  entire  rent,  viz.,  the 
ancient  rent  for  that  part  which  had  been  anciently  demised, 
was  held  to  be  void  for  the  whole  of  the  lands  included  in 
that  parcel,  as  well  the  lands  never  before  let  as  those 
anciently  let ;  but  it  was  considered  good  as  to  the  other 
parcels,  which  contained  only  lands  anciently  demised,  and 
on  each  of  which  there  was  a  separate  reservation  of  the 
ancient  rent  (wj).  Where  lands  were  demised  to  a  person 
for  life,  with  power  to  lease  for  lives  all  but  a  certain  ex- 
cepted portion,  reserving  the  like  rents  as  were  then  reserved, 
or  more,  the  rents  then  being  29^. ;  and  the  devisee  made  a 
lease  for  three  lives  at  the  yearly  rent  of  40?.  of  the  lands 
within  the  power  and  part  of  the  excepted  lands,  it  was  held 
that  the  rent  could  not  be  apportioned,  and  that  the  lease 
being  void  for  the  excepted  lands  was  void  as  to  all  Qti). 
But  where  a  lease  was  held  void  because  lands  under  a 
power  were  let  together  with  other  lands  not  under  the 
power,  it  was  held  that  the  lease  was  good  as  to  the  latter 
lands  against  the  heirs  of  the  lessor  (o). 

*  (f)  Mode  of  Execution.  [*209] 

By  22  &  23  Vict.  c.  35,  s.  12,  "a  deed  hereafter  executed 
in  the  presence  of  and  attested  by  two  or  more  witnesses  in 
the  manner  in  which  deeds  are  ordinarily  executed  and 
attested  (j?),  shall,  as  far  as  respects  the  execution  and 
attestation  thereof,  be  a  valid  execution  of  a  power  of 
appointment  by  deed  or  by  any  instrument  in  writing  not 
testamentary  (<f),  notwithstanding  it  shall  have  been  ex- 
pressly required  that  a  deed  or  instrument  in  writing  made 
in  exercise  of  such  power  should  be  executed  or  attested 
with  some  additional  or  other  form  of  execution  or  attesta- 
tion or  solemnity :  provided  always,  that  this  provision  shall 
not  operate  to  defeat  any  direction  in  the  instrument  creat- 

(m)  Doe  d.  Barlett  v.  Eendle,  3  M.  (p)  In  re  Rickett,  1  Johns.  &  H. 

&S.99;  Fuller  t'.  Abbott,  4  Taunt.  105.  70;  29  L.  J.,  Ch.  712. 

(n)  Doe  d.  Williams  v.  Matthews,  5  Qj)  They  are   provided   for  by  1 

B.  &  Ad.  298.  Vict.  c.  26,  s.  10  ;  Coie  Ejec.  501. 

(o)  Doe  d.  Lord  Egrcmont  v.  Ste- 
phens, 6  Q.  B.  208. 

335 


*210  THE   LEASE.  [Ch.  V.  S.  19. 

ing  the  poAver  that  the  consent  of  any  particnhir  person 
shall  be  necessary  to  a  valid  execution  (r),  or  that  any  act 
shall  be  performed  (s),  in  order  to  give  validity  to  any 
appointment,  having  no  relation  to  the  mode  of  executing 
and  attesting  the  instrument ;  and  nothing  herein  contained 
shall  prevent  the  donee  of  a  power  from  executing  it  con- 
formably to  the  power  by  writing  or  otherwise  than  by  an 
instrument  executed  and  attested  as  an  ordinary  deed,  and 
to  any  such  execution  of  a  power  this  provision  shall  not 
extend." 

It  is  to  be  observed  that  if  the  power  prescribes  less  than 
the  statute,  it  is  sufficient  to  comply  with  the  terms  of  the 
power :  but  if  the  power  prescribes  more  than  the  statute,  it 
is  sufficient  to  comply  with  the  statute. 

(g)  Defects  in  —  lioiv  cured. 

Invalid  leases  good  as  contracts  for  leases.  —  By  12  &  13 
Vict.  c.  26  (t)  "  a  lease  invalid  by  reason  of  the  non-observ- 
ance or  omission  of  some  condition  or  restriction,  or  by  rea- 
son of  any  other  deviation  from  the  terms  of  the  power, 
shall,  after  entry  thereunder,  be  considered  in  equity  as  a 
contract  for  a  grant  in  respect  of  a  valid  lease  under  the 
power  to  the  like  purport  and  effect  as  such  invalid  lease, 
save  so  far  as  any  variation  may  be  necessary  in  order  to 
comply  with  the  terms  of  such  power ;  and  all  persons  who 
would  have  been  bound  by  a  lease  lawfully  granted  under 
such  power  sluiU  be  bound  in  equity  by  such  contract." 

Invalid  leases  cured  by  continuance  of  lessor's  estate.  —  By 
sect.  4,  "  where  a  lease  granted  in  the  intended  exercise  of 
any  such  power  of  leasing  as  aforesaid  is  invalid  by  reason 

that  at  the  time  of  the  granting  thereof  the  person 
[*210]  granting  the  same  could  not  lawfully  *  grant  such 

lease^  but  the  estate  of  such  person  in  the  heredita- 
ments comprised  in  such  lease  shall  have  continued  after  the 
time  when  such  or  the  like  lease  might  have  been  granted  by 

(r)  Freshfifld  v.  RecJ,  9  M.  &  W.  torpart  by  the  lessee,  see  Fryer  v. 
404,  Coombs,  11  A.  &  E.  40;]. 

(s)  As  to  the  execution  of  a  coun-  (/)    Amended   by    13  Vict.   c.   17. 

Sce;jo47,  p.  210. 

336 


Ch.  V.  S.  20.]  LEASES   TN   REVERSION.  *210 

him  in  the  lawful  exercise  of  such  power,  then  and  in  every 
such  case  such  lease  shall  take  effect,  and  be  as  valid  as  if  the 
same  had  been  granted  at  such  last-mentioned  time,  and  all  the 
provisions  herein  contained  shall  apply  to  every  such  lease." 

Confirmation  of  invalid  leases.  —  By  13  Vict.  c.  17,  "  where 
upon  or  before  the  acceptance  of  rent  under  any  such  invalid 
lease,  any  receipt,  memorandum  or  note  in  writing  confirm- 
ing such  lease  is  signed  by  the  person  accepting  such  rent, 
or  some  other  person  by  him  thereunto  lawfully  authorized, 
such  acceptance  shall,  as  against  the  person  so  accepting 
such  rent,  be  deemed  a  confirmation  of  such  lease." 

It  is  to  be  observed  that  an  invalid  lease  under  a  power 
may  be  confirmed  by  the  remainderman  or  reversioner  by  a 
mere  memorandum  or  note  in  writing  coupled  with  accept- 
ance of  rent ;  but  not  by  acceptance  of  rent  only,  without 
any  intention  of  thereb}^  confirming  the  lease.  The  mere 
acceptance  of  rent  by  a  remainderman  may  create  a  new  im- 
plied tenancy  from  year  to  year  as  between  him  and  the 
lessee,  which  tenancy  must  be  determined  by  notice  to  quit, 
or  otherwise,  before  the  tenant  can  be  turned  out  of  posses- 
sion (w). 

The  above  acts  do  not  apply  to  leases  granted  by  a  mere 
stranger  to  the  leasing  power ;  as  where  a  lease  is  granted 
by  the  executors  of  a  surviving  trustee  instead  of  by  his 
heir  (a:),  or  by  the  heir  instead  of  the  executors  (?/). 


Sect.  20.  —  Leases  in  Reversion. 

What  are  leases  in  reversion.  —  All  leases  which  are  not  to 
take  effect  in  possession  immediately,  hut  from  a  future  day., 
are  considered  as  reversionary  leases,  within  the  meaning  of 
powers  to  grant  leases  in  possession  and  not  in  reversion  (z). 
In  legal  acceptance   a  lease   for  years  in  reversion,  and  a 

(u)  Doe  d.  Martin  v.  Watts,  7  T.  (y)  Robson  v.  Fliglit,  34  L.  J.  Ch. 

R.  83  ;  Doe  d.  Tucker  v.  Morse,  1  B.  226. 

&  Adol.  365;  Doe  d.  Pennington  v.  (?)  Winter  r.  Lovcday,  Comyn.  39, 

Taniere,  12  Q.  B.  998 ;  Cole  Ejec.  33;  Holt,  C.  J.;  2  Salk.  537  ;  1  Ld.  Raym. 

Sag.  Pow.  715.  207  ;  Goodtitle  d.  Clarges  v.  Funucan, 

(.r)  Ex  parte  Cooper,  re  North  Lon-  2  Dong.  565;  Sug.  Pow.  chap.  18,  s.  4. 
don  R.  Co.,  U  L.  J.,  Ch.  373. 

337 


*211  THE  LEASE.  [Ch.  V.  S.  21. 

future  interest  for  years,  are  one  and  the  same :  a  future 
lease  and  a  lease  in  reversion  are  synonymous  (a).  But 
strictly  speaking  a  reversionary  lease  is  one  granted  for  a 
term  which  is  to  commence  from  or  after  the  expiration  or 
other  determination  of  a  previous  lease.  It  does  not 
[*211]  create  any  term  or  estate,  but  only  an  interesse  *  ter- 
mini, until  entry  thereunder  after  the  time  appointed 
for  its  commencement  (6).  The  granting  of  a  reversionary 
lease  does  not  disentitle  the  landlord  to  distrain  for  rent 
under  a  subsisting  lease  (e).  If  a  man  make  a  lease  for  life, 
and  afterwards  grants  the  lands  to  another  for  twenty-one 
years  after  the  death  of  the  tenant  for  life ;  these  words 
(without  the  word  "  demise  ")  are  sufficient  to  pass  a  rever- 
sionary interest  by  way  of  future  lease  (^).  If  the  rever- 
sionary lease  be  expressed  to  begin  from  the  end  of  the 
"  term  "  of  tlie  subsisting  lease,  and  the  subsisting  lease  be 
afterwards  determined  by  surrender  or  forfeiture,  the  rever- 
sionary lease  will  begin  at  once ;  but  if  it  be  expressed  to 
begin  after  the  end  of  twenty-one  years,  it  will  not  begin 
upon  the  surrender,  forfeiture  or  other  determination  of  the 
first  term  till  the  twenty-one  years  have  actually  run  out  by 
effluxion  of  time  (<?).  Where  a  lease  for  years  was  made, 
and  during  the  term  the  lessor  granted  a  lease  in  reversion 
of  part  of  the  premises  to  an  underlessee,  avIio  was  in  posses- 
sion of  them,  to  commence  on  the  day  the  original  lease 
determined ;  it  Avas  held  that  the  reversionary  lease  took 
effect  in  possession  immediately  on  the  determination  of  the 
first  lease  (/). 


Sect.  21. —  Conenrrent  Leases. 

Nature  of  concurrent  leases. —  A  concuirent  lease  is  one 
granted  for  a  term  Avhich  is  to  commence  he/ore  the  ex- 
piration   or    other    dctcu'iiiinat ion    of    a    previous    lease    of 

(c/)  (-'artli.  11,  l.O;  Su^.  Tow.  717  Hliitc-lifonl,  apy).,  Colo,  rosp.,  5  C. 
(8th  ed.).  15.,  N.  S.  514;  28  L.  J.,  C.  P.  140. 

(I>)  Smith  V.  Day,  2  M.  &  W.  CM.  (d)  Bac.  Abr.  tit.  Leases  (K.). 

(c)  Sec   Id.  OKI,  (!!»4,  (i'.K) ;  Doc  d.  {>')  Hac.  Abr.  tit.  Leases  (L.  1). 

Ilawlings  v.  Walker,  5  B.  &  C  111  ;  {  /')  llinehlilTe  r.  Karl  of  Kinnoul, 

6  Bing.  N.  C.  1  ;  G  Scott,  050. 

338 


Ch.  V.  S.  21.]  CONCURRENT   LEASES.  *212 

the  same  premises  to.  another  person.  If  nnder  seal  it 
operates  as  an  assignment  of  part  of  the  reversion  during 
the  continuance  of  such  previous  lease,  and  from  thence- 
forth as  a  lease  in  possession  during  the  residue  of  the 
time  therein  expressed  to  be  granted.  It  entitles  the  lessee, 
as  assignee  of  part  of  the  reversion,  to  the  rent  reserved 
in  the  previous  lease,  and  to  the  benefit  of  the  covenants 
therein  contained,  Avhich  are  to  be  respectively  paid  and 
performed  during  the  then  residue  of  the  term  granted 
by  the  iirst  lease,  and  the  continuance  of  the  concurrent 
lease  (</).  Formerly  a  concurrent  lease  Avas  inoperative  to 
pass  any  estate  during  the  prior  term,  unless  the  attornment 
of  the  previous  tenant  could  be  obtained,  when  it  would 
operate  as  an  assignment  of  the  reversion,  &c.  (/i).  Now 
no  attornment  of  the  tenant  in  possession  is  neces- 
sary (^)  ;  but  until  he  has  *  notice  of  such  assign-  [*212] 
ment  he  may  safely  continue  to  pay  his  rent  to  the 
lessor  (^),  who  will,  however,  be  liable  over  to  the  second 
lessee  for  so  much  mone}^  had  and  received  for  his  use  (/). 
If  a  concurrent  lease  be  granted  to  and  accepted  by  the 
smiw  lessee,  it  will  operate  as  an  implied  surrender  by  him 
of  his  previous  term,  and  take  effect  as  a  lease  in  possession 
for  the  term  thereby  granted  (;«) .  The  reason  is  that  the 
same  person  cannot  be,  at  the  same  time,  both  tenant" and 
reversioner  of  the  same  premises.  So  Avhere  a  party  entitled 
to  a  I'cmainder  in  tail  expectant  upon  the  determination  of 
a  life  estate,  grants  a  term  of  years  to  commence  immedi- 
ately, the  grantee,  without  entry,  takes  an  immediate  vested 
estate  carved  out  of  the  remainder,  and  not  a  mere  interesse 
termini ;  and  no  attornment  is  necessary  to  complete  such 
grant,  the  stat.  4  Ann.  c.  16,  s.  9,  having  rendered  attorn- 
ment unnecessary  (w).     A  devisee  for  life,  with  power  to 

((j)  Harmer  v.  Bean,  3  C.  &  K.  307.  (k)  4  Ann.  c.   16,  s.   10 ;  Cook  v. 

(A)  Bac.  Abr.  tit.  Leases  (N.).  Moylan,  1  Exch.  G7 ;  5  D.  &  L.  101. 

(i)  4  Ann.  c.  16,  s.  9 ;  post,  Chap.  (/)  Smith  v.  Jones,  1  Dowl.,  N.  S. 

VII.,    sect.    6,    "Attornment;"    Doe  526;  Watson  y.  McLean,  E.  B.  &  E. 

d.  Agar  v.  Brown,  2  E.  &  B.  331,  348.  75;  Neate  v.  Harding,  6  E.Kch.  349. 

Edwards  v.  Wickwar,  L.  11.,  1  Eq.  403 ;  (m)  Post,  Chap.  VIII.,  sect.  (b). 

14  W.  R.  79,  303,  contra — in  which  (n)  Doe  d.  Agar  v.  Brown,  2  E.  & 

there  is  no  reference  to  4  Ann.  c.  16,  B.  331,  348. 
s.  9  —  would    seem  to  be   incorrect. 

339 


*213  THE   LEASE.  [Ch.  V.  S.  22. 

make  leases  for  twenty-one  years,  whereon  the  old  accus- 
tomed rent  should  be  reserved,  made  a  lease  for  twenty-one 
years  under  the  old  rent,  &c.,  and  a  year  before  the  expira- 
tion of  that  lease  he  made  a  lease  to  another  for  twenty-one 
years  to  begin  presently ;  the  last  was  considered  to  be  good 
within  his  power  as  a  concurrent  lease,  because  it  was  no 
charge  upon  the  reversion,  nor  was  there  any  more  than 
twenty-one  years  in  the  whole  against  the  reversioner :  but 
this  power  would  not  warrant  the  making  of  leases  in 
reversion,  for  then  he  might  charge  the  inheritance  ad 
infinitum  (o).  One  who  has  a  power  to  grant  a  concurrent 
lease  within  seven  years  of  the  expiration  of  the  old  one, 
may  grant  a  lease  at  any  time  on  the  surrender  of  the  old 
one  (jt)).  If  apower  enables  a  tenant  for  life  to  make  leases 
for  years,  determinable  upon  one,  two,  or  three  lives  in  pos- 
session, of  such  part  and  j)arts,  and  so  much  only  of  the 
lands  of  the  creator  of  the  power  as  are  then  demised  or 
granted  for  any  such  time,  &c.,  no  lands  can  be  demised 
under  such  a  power,  but  what  are  at  the  time  of  the  execu- 
tion of  the  power  under  lease  for  one,  two,  or  three  concur- 
rent lives ;  or  for  any  term  of  years,  determinable  upon 
one,  two,  or  three  concurrent  lives ;  the  meaning  of  such 
restriction  is,  in  figurative  language,  that  the  candles  shall 
be  all  burning  at  the  same  time  (y). 


[*213]  *Sect.  22.  — Estoppel 

Nature  and  use.  —  Indentures  of  lease  for  years  sometimes 
enure  by  way  of  esfopjyel,  which  word  signifies  an  impediment 
or  bar  to  a  man's  invalidating  liis  own  solemn  act(r).^ 
Estoppels  in  general  are  not  favoured  (.s-)  :  thoy  continue  no 
longer  on  either  party  than  during  the  lease  (<^),  or  during 

(o)   Powell  on   Powers,  428 ;   Bac.  benham,  4  T.  R.  254  ;   Skipworth  r. 

Abr.  tit.  Leases  (L.)-  Green,  8   Mod.  311;   Com.    Dig.    tit. 

(p)  Com.  Dig.  tit.  Estates  (G.  1").  Estates  (K.  8)  ;  Bae.  Abr.  tit.  Joint 

(7)  Powell  on  Powers,  r>41  ;  Doe  d.  Tenants   and    Tenants    in    Common 

Wymiham  v.  Ilalcombe,  7  T.  II.  713.  (H.  1). 

(r)  Lyon  v.  Heed,  13  M.  &  W.  285.  (0  Co.  Lit.  47;  James  v.  Landon, 

(«)  Co.  Lit.  353,  n.  1 ;  Ke.\  v.  Lub-  Cro.  Eliz.  .'5(5. 

'  See  ante,  sec.  1,  Chap.  L,  note. 

340 


Ch.  V.  S.  22.]  ESTOPPEL.  *213 

any  renewed  tenancy  (u)  :  they  ought  to  be  mutual,  other- 
wise neither  party  is  bound  by  them  (f).^ 

Effect  of  estoppels  on  the  lessor.  —  A  grantor  by  deed  is 
estopped  from  saying  that  he  had  no  interest  (a^).-^  So  a 
lessor  is  estopped  by  the  lease  from  denying  that  he  had  any 
estate  in  the  land  at  the  time  the  lease  was  executed  by  him, 
or  that  he  had  no  right  to  dispose  of  the  possession  during 
the  term  thereby  expressed  to  be  granted  (^).i  Upon  the 
execution  of  a  lease  which  operates  by  estoppel,  there  is  in 
contemplation  of  law,  created  in  the  lessor,  a  reversion  in 
fee  simple  by  estoppel,  which  passes  by  descent  to  his  heir, 
and  by  purchase  to  his  assignee  or  devisee,  who  may  sue  on 
the  covenants  in  the  lease  (2).  An  under-lease  made  by  a 
lessee  who  at  the  time  of  making  it,  and  subsequently,  had 
no  legal  interest,  operates  as  a  demise  by  estoppel  (a).  If  a 
man  make  a  lease  for  years  by  indenture  of  lands  wherein  he 
has  nothing  at  the  time  of  such  lease  made,  and  afterwards 
purchase  those  lands,  this  makes  his  lease  as  good  and  un- 
avoidable, as  if  he  had  been  in  the  actual  possession  and 
seisin  thereof  at  the  time  of  such  lease  made  (5). 

Estoppel  in  case  of  mortgage.  —  Where  a  lessee  for  years 
made  an  under-lease  by  way  of  mortgage,  and  afterwards 
another  sub-lease  by  indenture  for  a  short  term,  it  was  held 
that  the  latter  sub-lease,  though  originally  a  lease  by  estoppel, 
was  convertible  into  a  lease  in  interest  by  a  reconveyance  by 
the  mortgagees,  so  as  to  give  a  right  of  action  to  the  assignee 
of  the  lessee  (c).     But  where  a  mortgagor  made  a  lease  after 

(«)  London  and  North  Western  R.  («)  Cuthbertson  v.  Irving,  4  H.  & 

Co.  V.  West,  L.  R.,  2  C.  P.  553;  36  N.  742;  6  Id.  135;  28  L.  J.,  Ex.  300; 

L.  J.,  C.  P.  245.  29  Id.  485. 

(v)  Co.  Lit.  352.  (a)  Doe  d.  Prior  i-.  Ongley,  10  C. 

(x)  Doe  d.  Hurst  v.  Clifton,  4  A.  &  B.  25. 
E.  813  ;  Doe  d.  Leeming  v.  Skirrow,  ((')  Bac.  Abr.  tit.  Leases  (O.)  ;  Tre- 

7  A.  &  E.  157;    Doe  d.  Gaisford  v.  vivan  v.  Lawrence,  6  Mod.  258 ;  2  Ld. 

Stone,  3  C.  B.  176  ;  Doe  d.  Levy  v.  Raym.  1048 ;  1  Salk.  276  ;  Goodtitle 

Home,  3  Q.  B.  757,  766.  d.  Faulkner  v.  Morse,  3   T.  R.  371  ; 

(y)  Darlington  v.  Pritchard,  4   M.  Sturgeon  v.  Wingfield,  15   M.  &  W. 

&  G.  783;  2  Dovvl.,  N.  S.  664;  Green  224. 

V.  James,  6  M.  &  W.  656  ;  Cole  Ejec.  (c)  Webb  v.  Austin,  7  M.  &  G.  701 ; 

220.  8  Scott,  N.  R.  419. 

1  See  ante,  sec.  1,  Chap.  I.,  note. 

341 


*214  THE   LEASE.  [Cii.  V.  S.  22. 

the  mortgage,  a  subsequent  purchaser  of  the  legal  estate 
from  the  mortgagee  and  of  the  equitable  estate  from  the 
mortgagor,  the  latter  joining  in  the  conveyance  of  the  legal 

estate,  was  not  before  the  Conveyancing  Act  (c^) 
[*214]   *  bound  by  the  lease  of  the  mortgagor  (e).     A  lessor 

is  estopped  from  contending  that  he  had  merely  an 
equitable  estate  when  he  granted  the  lease  (/).  But  where 
the  lease  stated  that  the  lessors  were  oicners  subject  to  a 
mortgage,  and  that  they  demised  the  land  to  the  lessee,  it 
was  held  that  neither  party  was  estopped  from  denying  that 
the  lessors  had  a  legal  reversion,  but  that  they  were  estopped 
from  asserting  it  (^).  After  a  term  had  been  mortgaged,  H., 
who  had  interest,  made  a  lease  for  years  by  deed  ;  the  mort- 
gagees and  H.  then  surrendered  to  the  lessor,  who  re-demised 
to  H.,  and  the  latter  then  assigned  his  interest  to  the  defend- 
ant: held  that  there  was  a  reversion  in  H.  by  estoppel  on 
the  lease  made  by  him  which  passed  to  the  defendant,  who 
was  thereby  liable  to  the  lessee  on  the  covenants  of  that 
lease  (K). 

Tenant  estopped.  —  Cooke  v.  Loxley.  —  It  is  one  of  the  first 
principles  of  the  law  of  estoppel,  as  applied  to  the  relations 
between  landlord  and  tenant,  that  a  tenant  is  estopped  from 
disputing  the  title  of  his  landlord  (i).  In  an  action  on  a 
bond  conditioned  for  the  payment  of  the  rent  of  certain  prem- 
ises recited  in  the  condition  to  be  demised  by  indenture  at  a 
certain  rent,  the  defendant  is  estopped  from  saying  that  by 
the  indenture  a  less  rent  than  that  mentioned  in  the  condi- 
tion was  reserved  (/r).  In  an  ejectment  for  mines  against  a 
member  of  a  mining  company,  it  was  held  tliat  the  defendant 
was  estopped  from  disputing  the  title  of  the  lessor  of  the 

((/)  For    effect    of     Conveyancing  (/)  Cooke   r.  Loxley,  5   T.    R.   4  ; 

Act,  see  Ch.  I.,  sect.  28  (t),  ante..  Cutlibertson    v.    Irving,  supra,    note 

(e)  Doe  (I.  Lord  Downe  r.  Thomp-  (.s)  ;  Beckett  v.  Bradley,  7  M.  &  G. 

son,  9  Q.  B.  10:37.  904 ;  8  Scott,  N.  R.  843;  2  1).  &  L. 

(/)  Greene.  James,  n  M.&W.  050.  680;   Langford  i'.  Selmes,  3   K.iy    & 

(fj)  Pargetcr  v.  Harris,  7  q.  B.  708.  J.  220;  Deianey  v.  Fox,  1  C.  B.,  N. 

But    see  Morton  v.  Woods,  L.  R.,  4  S.  100;  2  Id.  708. 
Q.  B.  20.".,  and  note  (/),  ]>ost.  (k)  Lainson  v.  Tremcre,  1  A.  &  E. 

(//)  Sturgeon  v.  Wingfield,  15  M.  &  792. 
W.  224. 

342 


Cii.  V.  S.  22.]  ESTOPPEL.  *215 

plaintiff,  who  had  leased  the  mines  to  the  company,  of  which 
the  lessor  was  a  partner  at  the  time  of  the  action,  but  not  at 
the  time  he  granted  the  lease  (/). 

Tenant  may  show  landlord's  title  to  be  expired.  —  Delaney  i\ 
Fox.  —  The  tenant  may,  however,  show  that  his  landlord's 
title  has  expired  (?n)  :  but  where  a  defendant  in  an  action 
for  use  and  occupation,  had  occupied  apartments  in  a  house 
belonging  to  a  wife,  and  had  paid  rent  to  the  husband,  who 
subsequently,  with  the  knowledge  of  the  defendant,  granted 
a  lease  of  the  whole  house  to  the  plaintiff :  it  was  held,  that 
having  occupied  with  notice  of  the  lease,  he  could  not  im- 
peach its  validity,  nor  controvert  the  plaintiff's  title  (ii). 
Upon  an  information  to  set  aside  a  lease  of  charity 
lands,  it  was  held  in  Chancery  *  that  the  lessees  [*215] 
could  not  dispute  the  title  by  setting  up  an  adverse 
title  whilst  they  retained  possession  (o). 

Tenant  may  show  that  other  person  than  claiming  assignee  of 
reversion  has  title.  —  The  rule  that  a  tenant  may  not  dispute 
his  landlord's  title  applies  only  to  the  title  of  the  landlord 
who  let  him  in ;  and  the  tenant  may  deny  the  title  of  a 
claiming  assignee  of  a  reversion  by  showing  a  title  in  some 
other  person  (p). 

Estoppel  as  against  reversioner.  —  The  interest  of  a  tenant 
for  life  and  a  reversioner  are  the  same,  and  therefore  a  lessee 
who  has  paid  rent  to  the  fii'st,  cannot  set  up  title  in  another 
person  as  an  answer  to  an  action  by  the  latter  after  the  death 
of  the  former  {q).  A  lessee,  by  executing  an  indenture  of 
lease,  admits  a  will  under  which  it  is  recited  that  the  lease 
was  granted  (r).  A  lessee  of  tolls,  under  an  instrument 
signed  by  the   persons    as   trustees,  admits    they  are    trus- 

(/)  Francis  v.  Doe  d.  Harvey,  4  M.  (n)  Rennie    r.   Robinson,   1   Bing. 

&  W.  331.  147. 

{m)  Delaney  v.  Fox,  2  C.  B.,  N.  S.  (o)  Att.-Gen.  v.  Ld.  Ilotham.S  Russ. 

768;    Neave    c.    Moss,  1    Bing.   363;  415. 

Doe  d.  Jackson  v.  Ranisbotham,  3  M.  (p)  Carlton  v.  Bowcock,  51  L.  T., 

&  S.  516;  Doe  d.  Strode  v.  Seaton,  2  659;  and  post,  Ch.  VII.,  sect.  5. 

C,  M.  &  R.  728 ;  Downes  v.  Cooper,  (7)  Doe  d.  Colemore  v.  Whitroe,  1 

2  Q.  B.  256  ;  Claridge  v.  Mackenzie,  D.  &  Ry.  1. 

4  M.  &   G.  143;   Doe  d.  Leeniing  v.  (?)  Bringloe  v.  Goodson,  5  B.N.  C. 

Skirrow,  7  A.  &  E.  157.  738. 

343 


*216  THE   LEASE.  [Ch.  V.  S.  22. 

tees  (s).  An  assignee  is  estopped  by  the  deed  Avhich  estops 
his  assignor  (t)  :  and  an  assignor,  by  executing  the  assign- 
ment in  which  the  original  lease  is  recited,  is  precluded  in 
an  action  by  the  assignee  from  calling  upon  him  to  prove 
the  lease  (m)  :  so  an  assignee  of  a  void  lease  by  a  tenant  for 
life  is  estopped  from  disputing  the  title  of  the  remainder- 
man, though  his  assignment  was  after  the  death  of  the  tenant 
for  life,  and  payment  to  and  acceptance  of  rent  by  the 
remainderman,  and  with  notice  of  that  fact  (a;).  So  where 
a  lease  was  granted  by  A.  and  B.  as  granting  parties,  and 
reserved  the  rent  and  right  of  ]-e-entry  to  a  close,  it  was 
held  that  the  assignee  of  the  lessor  was  estopped  from  show- 
ing that  A.  had  no  interest  in  the  premises  (y).  In  defence 
of  an  action  of  ejectment,  it  may  be  sho^^'n  that  the  parties 
under  whom  the  plaintiff  claims  had  no  title  when  they  con- 
veyed to  him,  although  the  defendant  himself  claims  by  a 
conveyance  from  the  same  parties,  if  the  latter  conveyance 
was  subsequent  to  that  which  the  defendant  seeks  to  im- 
peach (5;). 

Want  of  title  appearing  on  lease.  —  It  was  at  one  time 
thought,  from  Cuthbertson  v.  Irving  (a)  and  other  cases, 
that  when  the  document  of  lease  showed  a  want  of  title  in 
the  landlord,  there  was  nothing  to  estop  the  tenant  from 
denying  that  title ;  but  this  doctrine  has  now  been  distinctly 
overruled  in  Jolly  v.  Arbuthnot  (ft),  as  was  pointed  out  by 

the  Exchequer  Chamber  in  Morton  v.  Woods  (<•)• 
[*216]  *  Effect  of  estoppels  on  validity  of  lease.  — In  an 
action  for  rent,  where  the  title  to  the  land  is  not  in 
question,  tlie  defendant  is  estopped  from  saying  the  lease  is 
not  a  good  one ;  for  the  covenant  for  payment  of  the  rent 
is  good  (r/).     But  he  may  plead  a  new  substituted  tenancy 

(s)  Willington    v.  Brown,  8   Q.  B.  (z)  Doe  d.  Oliver  v.  rowell,  1  A.  & 

169.  E.  531. 

(0  Taylor   V.  Nccdliani,  2   Taunt.  («)  29   L.   J.,   Ex.   485  ;   see,   too, 

278 ;  Barwick  d.  Mayor,  &c.,  of  Kicli-  Pargeter  v.  Harris,  7  Q.  B.  708. 

mond    V.   Tliompson,   7    T.   K.   488;  (/>)  4  De  G.  &  J.  224;  28  L.  J.,  Ch. 

Bryan  d.  Child  v.  Winwood,  1  Taunt.  547. 

208.  (r)  L.  R.,  4  Q.  B.  293  ;  38  L.  J.,  Q. 

(m)  Nash  V.  Turner,  1  Esp.  217.  B.  81  ;  9  B.  &  S.  059;  17  W.  U.  414. 

(x)  Johnson  v.  Mason,  1  Ksp.  89.  (d)  Monroe  v.  Lord  Kerry,  1  Bro. 

(//)  Parke    i-.    M'Loughlin,    1    Ir.  P.  C.  07. 
Law  U.,  N.  S.  186. 

344 


Ch.  V.  S.  23.]  BOND  FOR  PERFORMANCE  OF  COVENANT.  *216 

from  year  to  year  and  the  determination  thereof  by  notice 
to  quit  before  the  rent  chiimed  became  due ;  and  that  not- 
withstanding he  omitted  so  to  plead  in  a  previous  action 
founded  on  the  same  lease  or  agreement  (g).  Wliere  a 
tenant  for  life  under  a  devise,  with  a  leasing  power,  let  to 
defendant  by  a  lease,  not  noticing  the  power ;  and  after  the 
death  of  the  lessor,  a  succeeding  tenant  for  life  under  the 
same  devise  brought  ejectment  against  the  defendant,  on 
the  ground  that  the  lease  was  not  a  valid  execution  of  the 
power ;  it  was  held,  that  the  defendant  was  not  estopped 
from  setting  up  an  outstanding  term  of  years  in  trustees 
created  by  a  tenant  in  fee,  from  whom  the  devisor  had 
inherited,  as  the  lessor  of  the  plaintiff  himself  denied  the 
right  of  the  defendant's  lessor  to  grant  the  lease  (/). 

Effect  of  estoppels  as  to  description  of  premises.  —  The  tenant 
is  not  estopped  by  the  description  of  the  lands  in  the  lease, 
as  "  meadows,"  from  pleading  and  proving  that  they  had 
been  converted  into  arable  before  the  lease,  and  have  been 
used  as  such  ever  since  (</). 


Sect.  23.  —  Sondfor  Performance  of  Covenant. 

Nature  and  effect.  —  Sometimes  a  bond  is  taken  by  the 
lessor  from  the  lessee,  with  or  without  sureties,  conditioned 
for  payment  of  the  rent  and  performance  of  the  covenants 
in  the  lease  (A),  or  a  guarantee  in  writing  for  the  due  pay- 
ment of  the  rent  (i).  Such  a  guarantee  will  cease  when  the 
tenancy  is  determined  by  due  notice  to  quit,  notwithstanding 
such  notice  is  waived  and  a  new  tenancy  created  (¥).  Some- 
times also  a  bond  is  made  b}^  a  sub-lessor  to  a  sub-lessee, 
conditioned  to  indemnify  him  from  the  rent  reserved  in  the 
original  lease,  and  from  all  distresses,  ejectments,  and  other 

(e)  Howlet  v.  Tarte,  10  C.  B.,  N.  S.  (0  Tayleur  v.  Wildin,  L.  R.,  3  Ex. 

813;  31  L.  J.,  C.  P.  146.  303 ;  37  L.  J.,  Ex.  173. 

(/)    Doe    d.    Lord    Egremont    v.  (/l)  Tayleur  r.  Wildin,  L.  R.,  3  Ex. 

Wyndham,  12  Q.  B.  711.  303;  37  L.  J.,  Ex.  173;  see  this  case 

(y)   Skipworth    v.   Green,    1    Stra.  distinguislied  in  the  very  special  case 

610;  8  Mod.  311.  of   Holmes    v.    Brunskill,    L.    R.,    3 

(A)  Lainson  v.  Tremere,  1  A.  &  E.  Q.  B.  D.  495. 
792. 

345 


*217  THE   LEASE.  [Ch.  V.  S.  24. 

proceedings  in  respect  thereof ;  or  b}^  the  assignee  of  a  lease 
to  the  assignor  to  indemnify  him  from  the  rent  and  covenants 

in  the  lease ;  or  by  the  assignor  to  the  assignee  (Z). 
[*217]  Such  bonds  respectively  are  within  the  8  &  9  Will.  *  3, 

c.  11,  s.  8,  and  operate  as  securities  only,  and  the 
actual  damages  only  are  recoverable  (w«). 


Sect.  24.  —  Rectification  of  Erroneous  Lease. 

In  what  cases.  —  If  a  lease  or  other  deed  be  drawn  up  and 
executed  upon  terms  materially  different  from  those  actually 
agreed  on,  and  contrary  to  the  real  intention  of  both  parties, 
a  court  of  equity  may  cause  it  to  be  reformed  and  corrected, 
or  set  aside  Qi) ;  ^  but  it  will  do  so  only  upon  very  strong 
evidence  clearly  showing  a  mistake  by  both  parties,  and  the 
onus  of  proof  lies  on  the  plaintiff  (o).  This  strict  rule  does 
not  seem  to  apply  as  between  vendor  and  purchaser,  or  lessor 
and  lessee,  Avhere  the  parties  can  be  replaced  in  statu  quo  (p), 
and  in  one  case  of  a  mistake  in  parcels,  where  the  mistake 

(/)  Smith  V.  Day,  2  M.  &  W.  684.  L.  J.,  Ch.  500 ;  Rooke  v.  Ld.  Kensing- 

(m)  2   Chit.  PI.'  320  (7th    ed.)  ;    2  ton,  2  Kay  &  J.  743 ;  Story  Eq.  Jur. 

Wms.  Saund.  187  a,  n.  (c).  s.  157;  8  E.  &  B.  257,  294;  Earl  of 

(n)   Murray   v.   Parker,   19   Beav.  Bradford  v.  Earl  of  Romney,  30  Beav. 

305;    Garrard   v.   Frankel,  30   Beav.  431;    Garrard    v.   Frankel,  30  Beav. 

445;  31  L.  J.,  Ch.  604  ;  Mortimer  v.  445;  Price  v.  Ley,  32  L.  J.,  Ch.  530; 

Shortall,   2   Dru.  &  W.  363;   Lister  Seaton  i-.  Staniland,  4  Gift.  61 ;  Elwes 

V.  Hodgson,  L.  R.,  4  Eq.  30;  15  W.  v.  Elwes,  3  I)e   Gex,  F.  &   J.   667; 

R.  547;    Harris  v.  Pepperell,  L.  R.,  Fallon  v.  Robins,  16  Ir.  Ch.  R.  422. 
5  Eq.  1.  (p)  Harris  v.  Pepperell,  L.  R.,   5 

(o)  Wright  V.  Goff,  22  Beav.  207 ;  Eq.  1. 
Sells  V.  Sells,  1  Drew.  &,  Sm.  43;  29 

1  Reformation  and  damages  for  fraud.  —  A  covenant  wliich  does  not 
express  intentions  of  jjartios  will  be  rectified  against  party  taking  advantage 
of  omission.     Buhner  r.  Bruniwell,  13  A.  R.  (Ont.)  411. 

Wliere  a  party  signed  under  material  false  representations  as  to  its  con- 
tents, court  held  lease  void  and  su.stained  an  oral  agreement  in  place  of  it. 
Wheeler  &  Wilson  Man.  Co.  r.  Charters,  21  N.  B.  480. 

It  has  been  held  that  if  lessor  knowingly  make  false  representations  as  to 
sanitary  condition  of  premises,  lessee  may  make  suital)ie  rei)airs  and  offset 
the  expenses  against  rent.     W(dfe  v.  Arrott,  109  Pa.  St.  473. 

Reformation  will  not  be  granted  without  clear  i)roof  of  fraud  or  mistake. 
Albany  lust,  for  Savings  v,  Burdick,  87  N.  Y.  40,  50.  See  post,  sec.  25,  Re- 
scission for  fraud,  &c. 

346 


Ch.  V.  S.  24.]         RECTIFICATION   OF   ERRONEOUS    LEASE.        *218 

was  partly  on  the  side  of  the  plaintiff,  it  appears  to  have 
been  relaxed,  and  an  annulment  ordered  unless  tlie  defend- 
ant would  consent  to  a  rectification,  which  he  did  ( (^). 
Parol  evidence  is  admissible  ('')-^  iLhe  court  will  not  reform 
a  deed  on  petition,  but  an  action  must  be  brought ;  and  so 
long  as  the  deed  stands  the  court  is  bound  to  act  upon  it, 
notAvithstanding  it  may  be  satisfied  that  the  deed  is  at  vari- 
ance with  the  intention  of  the  parties  (s). 

Action  for  rectification  brought  in  Chancery  Division.  —  By 
section  34  of  the  Judicature  Act,  1873,  any  action  for  "the 
rectification  or  setting  aside  or  cancellation  of  deeds  or  other 
written  instruments "  must  be  brought  in  the  Chancery 
Division  of  the  High  Court.  But  the  24th  section  of  the 
same  act  gives  power  to  any  other  division  to  treat  an  instru- 
ment as  rectified  or  set  aside  (^). 

Compensation  for  error  in  lease.  —  In  a  very  clear  case  of 
mistake,  compensation  may  be  awarded  to  a  tenant  for  hav- 
ing accepted  an  erroneous  lease,  instead  of  rectifying  the 
lease  itself.  This  principle  w^as  recognized  in  Besley 
V.  Besley  (w),  *  in  which  case,  however,  compensation  [*218] 
was  refused. 

Rectification  of  erroneous  lease.  —  The  facts  were  these. 
By  contract  in  1861  the  defendant  agreed  to  grant  to  the 
plaintiff  a  sub-lease  for  the  residue  of  his  own  term  less  ten 
days.  In  pursuance  of  this  contract  an  underlease  was  pre- 
pared by  the  defendant's  solicitor  for  twenty-three  years  less 
ten  days,  and   the  lease   was   executed  by  the   lessee,  who 

{q)  Paget  !•.  Marshall,  54  L.  J.,  Ch.  (?■)   Price  ;•.  Ley,  supra. 

575;  51  L.  T.  351,  per  Bacon,  V.-C.  (s)  In  re  Malet,  31  L.  J.,  Ch.  455, 

In  this  case  the  plaintiff  granted  a  M.  R. 

lease   of    certain    portions    of    three  (t)   Mostyn    v.   West    Mostyn,  &c., 

warehouses,  and  by  mistake  included  Co.,  L.  R.,  1  C.  P.  D.  145;  45  L.  J., 

a  first  floor.     The  lease  was  ordered  C.  P.  401 ;  .34  L.  T.  .325. 
to  be  rescinded,  with  an  option  to  the  («)   L.  R.  9  Ch.  D.  103;  38  L.  T. 

defendant  to  take  it,  excluding  such  844 ;  27  W.  R.  184. 
first  floor. 

1  Parol  evidence ;  when  admissible.  —  Parol  evidence  is  admissible  to 
prove  fraud  or  mistake,  Bulnier  r.  Brumwell,  13  A.  R.  (Ont.)  411;  Wheeler 
&  Wilson  Man.  Co.  v.  Charters,  21  N.  B.  480;  Wolfe  i-.  Arrott,  109  Pa.  St. 
473 ;  but  it  must  be  clear  and  satisfactory,  Albany  Inst,  for  Savings  v.  Bur- 
dick,  87  N.  Y.  40,  50. 

347 


*218  THE  LEASE.  [Ch.  V.  S.  25. 

neither  inspected  the  head  lease,  nor  employed  a  solicitor. 
In  1877  it  was  discovered  that  the  head  lease  had  only  six- 
teen years  to  run  at  the  time  of  the  contract,  and  had  in  fact 
expired,  and  that  the  sub-lease  had,  hy  pure  7nistake,  been 
made  for  seven  years  longer  than  the  lessor  had  power  to 
make  it.  The  plaintiff,  who  had  been  obliged  to  procure  a 
new  lease  from  the  head  landlord  at  a  greatly  increased  rent, 
claimed  compensation,  but  Malins,  V.-C,  held  that  he  was  to 
blame  in  not  having  inspected  the  head  lease  at  the  time  of 
the  contract,  and  applying  the  rule  of  caveat  emptor,  dis- 
allowed the  claim. 

Correction  of  clerical  error.  —  Where  there  is  a  clear  case  of 
a  clerical  error,  it  is  presumed  that  the  Court  will  correct  it, 
and  construe  the  lease  as  if  the  error  had  not  been  made. 


Sect.  25.  —  Cancellation  of  Lease  for  Fraud,  Misrepresenta- 
tion, or  Concealment. 

If  a  lease  has  been  obtained  by  fraud  or  material  misrepre- 
sentation or  concealment,  either  on  the  part  of  the  lessor  or 
lessee,  it  may  be  set  aside  (x^.^      Mostyn  v.  West,  Mostyn  & 

(x)  See  Story  on  Equity,  ss.  191-203. 

1  Rescission  for  fraud  ;  mistake  ;  concealment,  &c.  —  (a)  A  lease  ob- 
tained by  fraud  is  void  against  lessee,  tliougli  under  seal.  Ilolley  v.  Young, 
66  Me.  020.  If  unfair  advantage  has  been  taken  of  one  of  weak  mind,  tlie 
court  will  order  a  rescission.  Shanagan  v.  Shanagan,  7  Out.  200  (lease  made 
by  old  man  without  professional  advice,  &c. ;  rescission  ordered,  but  lessor  to 
pay  for  improvements). 

A  lease  will  be  cancelled  after  building  has  been  burned,  if  parties  had 
agreed  to  insert  provision  for  suspension  of  rent  in  such  case,  which  had  not 
been  inserted  by  mistake.     Gates  v.  Green,  4  Paige  (N.  Y.)  355. 

If  lessee  be  induced  to  take  lease  by  fraudulent  misrepresentations  as  to 
extent  of  premises,  he  can,  after  entering,  sue  lessor  for  damages.  Wiiitney 
V.  Allaire,  1  N.  Y.  305.  If  he  occupy,  he  will  be  liable  only  for  reasonable 
value,  Irving  v.  Tiiomas,  18  Me.  418;  or  he  can  bring  a  suit  in  equity  for  a 
rescission,  Whitney  r.  Allaire,  1  N.  Y.  305,  310  (per  Gardiner,  J.). 

(I>)  The.  rule  rdrrat  emptor  does  not  aj)ply  to  a  misrejjresentation  of  facts 
within  peculiar  knowledge  of  lessor.  Irving  v.  Tliomas,  18  Me.  418,  423,  424 
(misrei)resentations  aa  to  tlie  income  and  value  of  use  of  a  tavern  house). 

(r)  Suppresslo  i>eri  may  be  ground  of  rescission.  Ciiretien  v.  Crowley,  2  Q. 
B.  K.  (Quebec)  385. 

348 


Ch.  V.  S.  25.]  CANCELLATION   OF   LEASE.  *218 

Co.  (?/)  is  ail  important  case  on  this  head,  being  decided  on 
the  ground  of  concealment  only.  In  that  case  the  lessor 
knew,  but  did  inform  the  lessee,  who  had  no  means  of  know- 
ing, that  he  had  no  title  to  part  of  the  lands  demised.  It 
was  held  that  the  lessee  might,  if  he  pleased,  be  relieved  of 
the  lease  altogether,  that  this  relief  might  be  given  in  an 
action  by  the  lessor  for  the  rent,  and  further  the  lessee 
might,  if  he  pleased,  reject  that  part  only  to  which  there  was 
no  title,  and  keep  the  remainder.  It  is  to  be  observed,  how- 
ever, that  in  this  case  the  lessee  does  not  appear  to  have 
either  entered  into  possession  or  paid  rent  (3). 

('/)  L.  R.,  C.  P.  D.  145,  and  supra  (?)  See  the  judgment  of  Lindley,  J. 

(217). 

349 


[*219] 


*  CHAPTER   VI. 


OF  TENANCIES  FOR  LESS  TERM  THAN  YEARS,   AND   OF 
PERMISSIONS   TO   OCCUPY. 


SECT.  _  PAGE 

1.  Tenancy  generally   ....  219 

2.  Tenancy  from  Year  to  Year  219 

3.  Tenancy  for  less  than  a  Year  22-1 

4.  Tenancy  at  Will 226 


SECT.  PAGE 

5.  Tenancy  on  Sufferance     .  .  230 

0.  Mortgagor  and  Mortgagee  .  232 

7.  Master  and  Servant      .     .  .  236 

8.  Vendor  and  Vendee      .    .  .  237 


Sect.  1.  —  Tenancy  generally. 

Evidence  of  tenancy.  —  In  manj'  cases,  where  no  express 
contract  of  letting  has  been  made,  a  tenancy  may  be  implied 
from  the  acts  of  the  parties,^  especially  the  occupation  and 

1  Implied  tenancies.  —  Occupancy  otherwise  unexplained  is  prima  facie. 
evidence  of  a  tenancy,  Keyes  v.  Hill,  30  Vt.  759,  765  {per  Barrett,  J.)  ;  but 
liable  to  rebuttal,  Kej'es  !•,  Hill,  supra.  If  shown  to  be  adverse,  the  presump- 
tion is  tliereby  overcome.  W^'inan  r.  Hook,  2  Me.  337.  A  judgment  debtor 
disputing  validity  of  levy  is  not  an  implied  tenant.  One  who  enters  and 
occupies  adversely  is  a  trespasser.     Krug  v.  Davis,  101  Ind.  75. 

A  mere  occupant  without  right  is  not  <a  tenant.  Merriam  i\  Willis,  10 
Allen  (Mass.)  118.  Sucli  occupant  might  maintain  trespass  against  a  mere 
intruder  {per  Metcalf,  J.,  supra,  and  j)er  Wilde,  J.,  in  Inh'b'ts  of  Barnstable  r. 
Thacher,  3  Met.  (Mass.)  239,  242,  243). 

Occupancy'  with  knowledge  that  rent  will  be  charged  will  ordinarily  create 
a  tenancy.  Ducey  Lumber  Co.  v.  Lane,  58  Mich.  520,  525;  Ward  v.  Warner, 
8  Mich.  508,  519,  520  {per  Martin,  Cli.  J.)  ;  Dwight  v.  Cutler,  3  Mich.  566. 

It  will  not  if  under  an  adverse  claim.  Ward  v.  Warner,  8  Mich.  508,  519, 
520;  Ilogsett  i^.  Ellis,  17  Mich.  .351,  373  {per  Christiancy,  J.). 

The  adverse  claim,  however,  must  be  more  than  a  mere  mental  or  silent 
one.  It  must  be  manifested  by  overt  acts  or  by  declarations  communicated 
to  the  owner.     Ilogsett  v.  Ellis,  supra. 

If  relation  of  landlord  and  tenant  has  been  established,  the  tenant  is 
estopped  thereafter  to  set  up  an  adverse  claim  during  tenancy.  See  ante, 
Ciiap.  I.,  sec.  1,  p.  2,  notes. 

A  party  occupying  land,  if  there  is  a  lease  on  record,  is  prima  facie  a  ten- 
ant.    Libbcy  r.  Staples,  .39  Me.  166. 

Occupancy  otherwise  explainable  does  not  constitute  tenancy.  Hardin  v. 
Pulley,  79  Ala.  .381. 

An  execution  debtor  is  not  a  tenant  to  the  purchaser  on  execution  sale  nor 
entitled  to  notice  t<T  quit.     Oriffin  v.  Rochester,  96  Ind.  545. 

A  remainderman  may  be  tenant  to  life  tenant.  Leavitt  v.  Leavitt,  47  N 
H.  329. 

350 


Cii.  VI.  S.  2.]     TENANCY  FROM  YEAR  TO  YEAR.       *219 

payment  of  rent  («).  Such  payment  frequently  affords  evi- 
dence of  a  promise  by  the  tenant  to  hold  the  premises  from 
year  to  year  on  the  terms  of  some  previously-existing  lease 
or  agreement  (b).^  The  presumption  which  arises  from  the 
payment  and  acceptance  of  rent  is  the  same  against  a  cor- 
poration as  against  an  ordinary  person  (c).  Where  premises 
are  taken  under  a  written  agreement,  an  oral  alteration  of 
the  rent  will  not  constitute  a  fresh  demise  (^d).^  So  an 
agreement  by  the  tenant  to  pay  an  additional  sum  yearly, 
in  consideration  of  his  landlord  making  certain  improve- 
ments in  the  demised  premises,  does  not  create  a  new 
demise  (e). 

Sect.  2.  —  Tenancy  from   Year  to   Year. 

Nature  of  the  tenancy.  —  A  tenant  from  year  to  year  is 
one  who  holds  under  a  demise  (express  or  implied)  ^  for  a 

(«)  Smith  L.  &  T.  24-29  (2n(l  ed.).  {d)  Crowley  v.  Vitty,  7  Exch.  319; 

{l>)  Doe  d.  Rigge  v.  Bell,  5  T.  K.  21  L.  J.,  Ex.  13(5;  Geeckie  v.  Monk, 

471 ;  and  see  the  cases  cited  post,  p.  1  C.  &  K.  307  ;  Doe  d.  Monk  v.  Geec- 

221.  kie,  Id.  307;  5  Q.  B.  841  ;  Clarke  r. 

(f)  Doe  d.  Pennington  r.  Taniere,  Moore,  1  Jon.  &  Lat.  723;  Burrows 

12  Q.  B.  998;  and  see  Hill  v.  South  v.  Gradin,  1  D.  &  L.  213. 

Staffordshire   R.  Co.,  11  Jur.,  N.  S.  («)  Donellan  v.  Read,  3  B.  &  Ad. 

192.  89i) ;  Foquet  v.  Moor,  7  Exch.  870. 

1  Allen  V.  Bartlett,  20  W.  Va.  46.  But  see  as  to  effect  of  holding  over 
after  lease  for  years,  post,  sec.  2,  notes. 

2  Neve  or  old  tenancy.  —  Whether  a  tenancy,  after  waiver  of  notice  and 
agreement  for  increased  rent,  is  a  new  tenancy  or  old  one,  is  question  for  jury. 
Lord  Inchiquhi  v.  Lyons,  20  L.  R.  Ir.  474. 

'^  Tenancies  from  year  to  year  distinguished  from  tenancies  at 
will.  —  (a)  At  common  law  and  in  all  the  American  states  and  provinces 
except  Maine  and  Massucliitsetts  parol  leases  for  terms  of  years  create  after 
entry  Implied  tenancies  from  year  to  year.  Reeder  v.  Sayrc,  70  N.  Y.  180, 
561;  Schuyler  v.  Leggett,  2  Cow.  (N.  Y.)  600;  People  v.  Rickert,  8  Id.  226; 
Blumenthal  v.  Bloomingdale,  100  N.  Y.  558,  561 ;  Lounsbery  r.  Snyder,  31  N. 
Y.  514;  Brewing  v.  Berryman,  2  Pugs.  (N.  B.)  115;  Doe  d.  Parkinson  v. 
Haubtman,  Bert  (N.  B.)  645;  Koplitz  v.  Gustavus,  48  Wis.  48;  Withnell  v. 
Petzold,  17  Mo.  App.  669  :  Kerr  v.  Clark,  19  Mo.  132 ;  Goodfellow  v.  Noble, 
25  Id.  60;  Ridgley  v.  Stillwell,  28  Id.  400;  Strong  v.  Crosby,  21  Conn.  398; 
Taggard  v.  Roosevelt,  2  E.  D.  Smith  (N.  Y.)  100  ;  Shepherd  v.  Cummings,  1 
Coldw.  (Tenn.)  354  ;  Dumn  v.  Rotherniol,  112  Pa.  St.  272  ;  McDowell  v.  Simp- 
son, 3  Watts  (Pa.)  135;  Williams  v.  Ackerman,  8  Or.  405;  1  Wash,  on  Real 
Prop.  sec.  391. 

(h)  Local  statutes  and  derisions.     In  Indiana  all  tenancies  not  otherwise  ex- 

351 


*219       TENANCIES   FOR   LESS   THAN   YEARS,  ETC.    [Ch.  VI.  S.  2. 

term  (/),  which  may  be  determined  at  the  end  of  the  first 
or  any  subsequent  year  of  the  tenancy,  either  by  the  land- 

(/)  How  V.  Kennett,  3  A.  &  E.  662. 

pressed,  are  tenancies  from  year  to  year  (Rev.  Sts.  sec.  5208).  Sivan  r.  Clark, 
80  Ind.  57. 

In  Delaware  no  estate  is  at  will  if  it  can  be  held  from  year  to  year  (Laws 
of  Del.  Ch.  101,  sec.  15)  ;  but  where  no  term  is  limited  (Ch.  120,  sec.  2),  ten- 
ancy is,  from  year  to  year,  unless  of  houses  or  lots,  usually  let  for  less  time. 

In  Dakota  (Civil  Code,  sec.  1115),  unless  otherwise  expressed,  tenancies  are 
for  one  year,  except  of  lodgings  or  places  where  there  is  a  different  custom. 

In  Georgia,  if  no  time  specified  (Code,  sec.  2290),  they  are  for  one  calendar 
year. 

In  South  Carolina  (Gen.  Sts.  sec.  1812),  unless  otherwise  specified,  they  are 
for  a  year. 

In  Quebec  (Civil  Code,  sec.  1608)  tenancies  without  lease  are  annual,  and 
terminate,  if  property  is  a  house,  May  1st,  if  a  farm,  Oct.  1st. 

In  Connecticut  (Gen.  Sts.  sec.  2907)  a  parol  lease  reserving  monthly  rent, 
and  not  specifying  time  of  termination,  is  a  lease  for  one  montli. 

In  Rhode  Island  an  indefinite  agreement  is  held  to  be  a  tenancy  from  year 
to  year  (Pub.  Sts.  Ch.  232,  sec.  5). 

In  N'ew  Hampshire,  under  the  construction  of  the  Statute  of  Frauds  (Gen. 
Laws  of  N.  H.  Ch.  130,  sec.  12),  parol  tenancies  not  otherwise  expressed  are 
primd,  facie  tenancies  at  will.  Currier  r.  Perley,  24  N.  H.  219,  225,  229  ; 
Hazeltine  v.  Colburn,  31  Id.  466,  471  (per  Bell,  J.)  ;  Weeks  v.  Sly,  61  Id.  89. 
Indeed,  in  Whitney  v.  Swett,  22  Id.  10,  it  was  held  that  such  a  tenancy  was 
conclusively  at  will.  Justice  Bell,  however,  who  gave  the  opinion,  has  in  two 
subsequent  cases,  supra  (Currier  v.  Perley  and  Hazeltine  r.  Colburn),  as  well 
as  Justice  Smith  (in  Weeks  i\  Ely),  limited  tiiis  doctrine  by  saying  that  ten- 
ancies from  year  to  \'ear  can  be  created  if  the  facts  show  such  to  be  the  inten- 
tions. 

In  Maine  and  Massachusetts,  under  the  Statute  of  Frauds,  as  there  con- 
strued, all  parol  tenancies  (definite  or  indefinite)  are  conclusivehj  tenancies  at 
will.  There  can  be  no  tenancy  from  year  to  year  created  except  by  an  instru- 
ment in  writing.  Rev.  Sts.  Me.  Chap.  73,  sec.  10;  Pub.  Sts.  Mass.  Chap.  120, 
sec.  3;  Little  v.  Palister,  3  Me.  6,  15;  Davis  v.  Thompson,  13  Me.  209;  Young 
V.  Young,  36  Iil.  133 ;  Withers  ?•.  Larrabee,  48  Id.  570 ;  Esty  v.  Baker,  50  Id. 
325;  Cunningham  v.  Halton,  55  Id.  33;  Robinson  i'.  Deering,  56  Id.  357; 
Wilson  V.  Prescott,  62  Id.  115;  Thomas  v.  Sanford  Steamship  Co.,  71  Me. 
548;  Rollins  r.  Moody,  72  Id.  135;  Ellis  v.  Paige,  1  Pick.  (Mass.)  43,  45; 
Coffin  )•.  Lunt,  2  Pick.  70;  Curtis  v.  Galvin,  1  Allen  (Mass.)  215,  &c.  Tiiis 
distinction  arose  from  the  construction  of  the  statute  in  Massachusetts  which 
omits  the  exception  of  three  years  in  favor  of  oral  leases  {per  Wilde,  J.,  in 
Ellis  V.  Paige,  1  Pick.  (Mass.)  43,  45).  The  decisions  there  liave  not  been 
followed  elsewhere  except  in  Maine. 

In  Missouri,  wliere  tlie  tliree  years  exception  is  also  omitted,  parol  tenancies 
are  held  to  be  either  from  year  to  year,  or  at  will  according  to  the  express  or 
implieil  intentions.  Tlie  Massacliusetts  cases  have  been  cited,  and  dis- 
tinguished (per  Napton,  J.,  in  Ridgely  r.  Still  well,  25  Mo.  570)  ;  or  approved 
(per  Bliss,  .1.,  in  Mammon  v.  Doughis,  50  Id,  434,  437),  but  not  followed. 

It  is  held  (as  in  most  states),  th.U  parol  leases  for  years,  after  entry,  are 
from  year  to  year,  Kerr  /•.  Chirk,   19  Mo.   132;  (Joodfellow  v.  Noble,  25  Id. 

;552 


Cn.  VI.  S.  2.]     TENANCY  FROM  YEAR  TO  YEAR.        *219 

lord  or  the  tenant,  by  a  regular  notice  to  quit  (^).  lie  is 
substantially  a   tenant  at  will ;    except  that  such   will  can- 

{(j)  Cole  Ejec.  20,  441. 

60;  Riflgely  ;•.  Stilhvell,  28  Id.  400,  40.3 ;  Rcully-y.  Murray,  34  LI.  420;  other 
parol  teiiiviu'ies  from  year  to  year,  or  at  will  according  to  e.xpress  or  implied 
contract,  Hamnion  v.  Douglas,  50  Mo.  435;  Withnell  i\  Petzold,  17  Mo. 
App.  069;  Vegely  v.  Robinson,  20  Id.  199,  203  {per  Phillips,  P.  J.)  ;  Ins.  Co. 
V.  Nat.  Bank,  71  Mo.  58;  St.  L.  &  I.  M.  R.  R.  Co.  v.  Ludwig,  6  Mo.  App.  584. 

In  Ridgely  v.  Stillwell,  25  Mo.  570,  it  was  said  (by  Napton,  J.)  that  "  A 
tenancy  at  will  must  be  created  by  express  contract." 

This  has  not  been  sustained  by  later  cases  above  cited.  By  special  statute 
(Rev.  Sts.  sec.  3078)  parol  tenancies  of  stores,  sliops,  houses,  or  other  build- 
ings in  cities  or  villages,  are  from  month  to  montii. 

In  Iowa  (Rev.  Code,  sec.  2014)  and  Kansas  (Comp.  Laws,  sec.  3204)  occu- 
pants with  consent  are  prima,  facie  tenants  at  will. 

(c)  In  the  majority  of  the  states  tenancies  either  at  will  or  from  year  to  year 
may  be  implied.  Squires  v.  Huff,  3  A.  K.  Marsh.  (Ky.)  18;  Sullivan  v. 
Enders,  3  Dana  (Ky.)  66;  Western  Union  Tel.  Co.  v.  Fain,  52  Ga.  18;  Duke 
V.  Harper,  6  Yerg.  (Tenn.)  280. 

In  few,  if  any,  will  tenancies  from  j'ear  to  year  be  implied  against  an 
express  contract.  Laxton  v.  Rosenberg,  11  Ont.  199,  207  ;  Humphries  v. 
Humphries,  3  Ired.  (N.  C.)  L.  362;  Stedman  v.  Mcintosh,  4  Id.  291;  Say  v. 
Stoddard,  27  Ohio  St.  478;  Waring  v.  L.  &,  N.  R.  Co.,  19  Fed.  Rep.  803; 
Bastow  v.  Cox,  11  Q.  B.  122 ;  Walker  v.  Giles,  6  C.  B.  662  ;  Dixie  v.  Davies,  7 
Exch.  89  ;  Anderson  v.  Midland  R.  R.  Co.,  30  L.  J.  Q.  B.  94._ 

{d)  Reservation  of  annual  rent.  —  This  "  is  the  leading  circumstance  "  indicating 
a  tenancy  from  year  to  year.  Kent,  J.,  in  Jackson  /'.  Bradt,  2  Caines  (N.  Y.) 
169,  174;  Lesley  v.  Randolph,  4  Rav.'le  (Pa.)  123,  Hall  v.  Wadsworth,  28  Vt. 
410  ;  Silsby  v.  Allen,  43  Vt.  172  ,  Hey  v.  McGrath,  81  Pa.  St.  310;  Morrill  v. 
Macknian,  24  Mich.  279;  Carey  v.  Richards,  4  West  L.  Mon.  251 ;  Barlow  v. 
Wainwriglit,  22  Vt.  88;  McClenaghan  v.  Barker,  1  Q.  B.  (Ont.)  26;  Hammon 
V.  Douglas,  50  Mo.  434,  437  (per  Bliss,  J.)  ;  Withnell  v.  Petzold,  17  Mo.  App. 
673,  674  (per  Rombauer,  J.) ;  Ins.  Co.  v.  Nat.  Bank,  71  Mo.  58. 

(e)  Annual  rent  not  conclusive.  —  It  will  not  control  a  contrary  agreement. 
Stedman  v.  Mcintosh,  4  Ired.  (N.  C.)  L.  291 ,  Humphries  v.  Humphries,  3  Id. 
363 ;  Say  v.  Stoddard,  27  Oliio  St.  478 ;  Walker  v.  Giles,  6  C.  B.  662 ;  Dixie  v. 
Davies,  7  Exch.  89;  Anderson  v.  Midland  R.  R.  Co.,  30  L.  J.  Q.  B.  94. 

(/)  Monthli]  rent.  —  This  sometimes  indicates  a  monthly  tenancy.  Anderson 
V.  Prindle,  19  Wend.  (N.  Y.)  391,  23  Id.  616;  O'Neil  v.  Wells,  2  Russ.  & 
Ches.  (N.  S.)  205;  Warner  v.  Hale,  65  111.  395,  Huyser  v.  Chase,  13  Mich. 
98;  Woodrow  v.  Michael,  13  Id.  187;  People  v.  Darling,  47  N.  Y.  666; 
Hammon  v.  Douglas,  50  Mo.  434,  437  (per  Bliss,  J.)  ;  Withnell  i'.  Petzold,  17 
Mo.  App.  673,  674  (per  Rombauer,  J.). 

(g")  Monthhj  rental;  nnder  yearhj  tenancy.  —  Where  circumstances  indicate 
a  yearly  tenancy,  monthly  rent  payments  will  not  change  it.  Scully  v.  Mur- 
ray, 34  Mo.  420  ;  Ridgely  v.  Stillwell,  25  Mo.  570;  Lloyd  v.  Cozens,  2  Ashm. 
(Pa.)  131. 

(A)  Oral  leases  for  vionths  will  create,  ordinarily,  tenancies  from  month  to 
month.  Geiger  v.  Braun,  6  Dalj'  (N.  Y.)  506.  And  a  tenant,  holding  over 
after  a  lease  for  a  month,  ordinarily  becomes  a  tenant  from  montli  to  month. 

353 


*220      TENANCIES   FOR   LESS   THAN   YEARS,   ETC.      [Ch.  VI.  S.  2. 

not  be  determined  by.  either  party  Avithout  due   notice    to 
quit  (K).     If  no  such  notice  be  given  the  tenancy  will  con- 
tinue from  year  to  year,  for  any  number  of  years 
[*220]  until  *  surrendered,  or  extinguished  by  the  Statute 
of  Limitations,  or  the  lessor's  title  ceases  (f).     The 


(/i)  Parkes  d.  Walker  ;•.  Constable,  (i)  Smith  L.  &  T.  30,  441. 

3  Wils.  25 ;    Smith  L.  &  T.  24  (2nd 
ed.). 

Prickett  v.  Ritter,  IG  111.  96;  Macgregor  v.  Defoe,  14  Ont.  87,  92.  But  in 
Shaffer  v.  Sutton,  5  Binn.  (Pa.)  228,  a  lease  for  nine  months  was  held  a  ten- 
ancy from  year  to  year. 

((')  Periodical  rent  pajiments;  presumptions.  —  Weekly,  monthly,  quarterly, 
or  yearly  paj'ments  indicate,  in  absence  of  express  contract  or  controlling  cir- 
cumstances, tenancies  from  week  to  week,  month  to  month,  quarter  to  quarter, 
or  year  to  year.  Lord  Ellenborough,  in  Doe  v.  Puffin,  6  Esp.  4;  Walworth, 
Chan.,  in  Prindle  v.  Anderson,  23  Wend.  (N.  Y.)  616,019;  Wilson,  C.  J.,  in 
Macgregor  v.  Defoe,  14  Ont.  87,  92,  &c. 

(  /)  The  erection  of  valuable  improvements  is  sometimes  evidence  that  the 
tenancy  is  from  year  to  year.  Doe  d.  Macqueen  v.  Hunter,  1  Kerr  (N.  B.) 
518;  Boudette  v.  Pierce,  50  Vt.  212. 

(^)  Purposes  of  tenancy  often  determines  its  character.  A  lease  of  a  farm, 
&c.,  requiring  a  year's  time,  is  usually  from  year  to  year.     Carey  v.  Richard, 

4  West.  Law  Mon.  251,  265,  270  {per  Wm.  Lawrence,  J.)  ;  Hunt  i'.  Morton, 
18  111.  75;  Hanchett  v.  Whitney,  2  Aik.  (Vt.)  240;  Leavitt  v.  Leavitt,  47 
N.  H.  329;  Hammon  v.  Douglas,  50  Mo.  434,  437  {per  Bliss,  J.);  Withnell 
V.  Petzold,  17  Mo.  App.  669,  673,  674  {per  Rombauer,  J.). 

(/)  Holding  over. —  A  tenant  for  j'ears  holding  over  with  consent  is  (in 
absence  of  new  agreement)  held  to  continue  under  the  original  terms  so  far 
as  applicable  to  a  yearl}'  tenancy.  Wilgus  r.  Lewis,  8  Mo.  App.  336 ;  Ins. 
Co.  V.  Nat.  Bank,  71  Mo.  58  ;  Withnell  v.  Petzold,  17  Mo.  App.  673  {per  Rom- 
bauer, J.)  ;  Hammon  v.  Douglas,  50  Mo.  434  {per  Bliss,  J.) ;  St.  L.  &  I.  M. 
R.  R.  Co.  V.  Ludwig,  6  Mo.  App.  583;  Iliiliard  v.  Gemmell.  10  Ont.  504,  505 
{per  Rose,  J.)  ;  Conway  v.  Starkweather,  1  Denio  (N.  Y.)  113  ;  Doe  d.  Heath- 
cote  I-.  Hughes,  3  Pugs.  &  Bur.  (N.  B.)  368;  Condon  v.  Barr,  47  N.  J.  L.  113, 
114,115  {per  Knapp,  J.)  ;  Miller  ?j.  Ridgely,  19  111.  App.  306;  McKinney  v. 
Peck,  28  HI.  174;  Pickett  ;•.  Bartiett,  13  Daly  (N.  Y.)  229,  230  {per  Daly, 
Ch.J.)  ;  Smith  )'.  Allt,  7  Id.  492,  493  {per  Daly,  Ch.  J.)  ;  Schuyler  v.  Smitii, 
51  N.  Y.  309;  Critchficld  r.  Remaley,  21  Neb.  178;  Sullivan  p.  Gary,  17  Cal. 
80;  Vrooman  v.  McKai?,  4  Md.  45o";  Hall  v.  Wadsworth,  28  Vt.  410  ;  Allen 
V.  Bartiett,  20  W.  Va.  4() ;  WollTe  v.  WoHTe,  69  Ala.  549;  Witt  v.  Mayor  of 
N.  Y.,  6  Robt.  (N.  Y.)  441  ;  Hall  v.  Myers,  43  Md.  446  ;  Burbank  v.  Dyer,  54 
Ind.  392;  Doe  d.  Peters  v.  Pelletier,  4  Allen  (N.  B.)  33;  Sturdee  v.  Merritt. 
3  Kerr  (N.  B.)  641.  As  to  tenancies  arising  from  holding  over,  see,  also,  post. 
(m)  [joases  defectivel ij  executed. — Tenancies  from  year  to  year  arise  from 
occupation  under  them.  Doe  ^/.  Pcnningt(m  r.  Taiiicre,  12  Q.  B.  998  (seven 
yearf' lease  not  under  seal)  ;  Fougera  »;.  Colin,  43  Hun  (N.  Y.)  464;  Stew- 
art V.  Apel,  5  Iloust.  (Del.)  189;  Lnughran  v.  Smith,  75  N.  Y.  206. 

354 


Ch.  VI.  S.  2.]         TENANCY   FIIOM   YEAR   TO   YEAR.  *220 

death  of  either  party  will  not  determine  it  (^h) ;  unless, 
indeed,  the  lessor  be  tenant  for  his  own  life  only,  and  the 
lease  is  not  made  pursuant  to  any  statute  or  power  (I). 

Such  lease  gives  one  time  of  continuance.  — "  Leases  from 
year  to  year,"  observes  Mr.  Preston,  "  give  only  one  time  of 
continuanee.  That  time,  however,  may  be  confined  to  one 
year,  or  extended  to  several  years,  according  to  circum- 
stances attending  the  tenancy  in  its  progress.  In  the  first 
f)lace,  the  lease  is  for  one  year  certain,  and  after  the  com- 
mencement of  every  year,  or  perhaps  after  the  expiration  of 
that  part  of  the  year  in  which  a  notice  of  determining  the 
tenancy  may  be  given,  it  is  a  lease  for  the  second  year ;  and 
in  consequence  of  the  original  agreement  of  the  parties 
every  year  of  the  tenancy  constitutes  part  of  the  lease,  and 
eventually  becomes  parcel  of  the  term  :  so  that  a  lease,  which 
in  the  first  instance  is  only  for  one  year  certain,  may  in  the 
event  be  a  term  for  one  hundred  years  or  more.  Under  this 
species  of  tenancy  the  law  considers  the  lease,  with  a  view 
to  the  time  which  has  elapsed,  as  arising  from  an  estate  for 
all  that  time,  including  the  current  year ;  and  with  a  view 
to  the  time  to  come,  as  a  lease  from  year  to  year.  For  as  all 
the  time  for  which  the  land  may  be  held  under  a  running 
lease  is  originally  given,  and  in  effect  passes,  by  the  same 
instrument  or  contract,  the  whole  time  is  consolidated,  and 
every  year  as  it  commences  forms  part  of  the  term  "  (w). 

Settlement  cases.  —  The  renting  of  a  tenement  from  three 
months  to  tlu-ee  months,  or  for  an  indefinite  peiiod,  and  an 
occupation  under  it  and  payment  of  rent  for  a  year  or  more, 
constitute  a  tenancy  from  year  to  year,  so  as  to  confer  a 
settlement  under  the  Poor  Law  (w). 

Creation  by  express  contract.  —  Where  parties  usually  agree 


(k)  Maddon  d.  Baker  t'.  White,  2  M.  &  W.  778 ;  14  &  15  Vict.  c.  25, 

T.  R.  159;    Doe   d.  Sliore  v.  Porter,  s.  1. 

3  T.  R.  13;    Mackay  r.  Mackretli,  4  (m)  3    Prest.  Conv.    70,    77.     And 

Doug.  213;  2  Ciiit.   R.  401;  15  Ves.  see  Tomkins  v.  Lawrence,  8  C.  &  P. 

241 ;  Doe  d.  Hull  v.  Wood,  14  M.  &  729 ;  Cattley  v.  Arnold,  supra. 
W.  682 ;  Cattley  v.  Arnold,  1  J.  &  H.  («)  Rex  v.  Herstmonceau.x,  7  B.  & 

651;  28  L.  J.,  Ch.  352;   Bootheroyd  C.  551;  Hastings  Union  v.  Guardians 

V.  Woolley,  5  Tyr.  522.  of  St.  James,  Clarkenwell,  L.  R.,  1  Q. 

(/)  Doe  d.  Thomas  v.  Roberts,  16  B.  38;  35  L.  J.  JI.  C.  05. 

355 


*221    TENANCIES   FOR   LESS   THAN   YEARS,   ETC.      [Ch.  VI.  S.  2. 

for  a  tenancy  "  from  year  to  year,"  and  possession  is  taken, 
such  a  tenanc}'  is  thereby  created,  and  may  be  determined 
at  the  end  of  the  first  or  any  subsequent  year  of  the  ten- 
ancy by  a  regular  notice  to  quit  (o).  But  where  a  tenancy 
is  created  "for  one  year  certain,  and  so  on  from  year  to 
year  "  (which  is  frequently  done  by  mistake),  it  enures  as  a 
tenancy  for  two  years  at  the  least,  and  cannot  be  determined 
at  the  end  of  the  first  year  (jt>)  ;  though  it  may  be  deter- 
mined by  notice  to  quit  at  the  end  of  the  second  or  any 

subsequent  year   of   the   tenancy.     A  demise   "  for 
[*221]  *a  year,"  or  "for  one  year  certain,"  does  not  create 

a  tenancy  from  year  "to  year,  nor  require  any  notice 
to  quit  at  the  end  of  the  year  (9').^ 

Implied  contract  by  entry  under  contract  for  lease  or  void 
lease.  —  Prior  to  Walsh  v.  Lonsdale,  the  doctrine  was  firmly 
established,  that  where  a  person  is  let  into  possession  under 
a  mere  agreement  for  a  future  lease,  he  becomes  only  a 
tenant  at  will;  but  it  was  equally  well  established,  that 
when  he  pays,  or  expressly  agrees  to  pay,  any  part  of  the 
annual  rent  thereby  reserved,  his  tenancy  at  will  changes 
into  a  tenancy  from  year  to  year,  upon  the  terms  of  the  in- 
tended lease  so  far  as  they  are  applicable  to  and  not  incon- 
sistent with  a  yearly  tenancy  (r).  That  the  freehold  interest 
was,  subsequent  to  the  making  of  the  agreement,  assigned  to 
another  person,  made  no  difference  in  law  (s).  The  effect 
of  Walsh  V.  Lonsdale  (ss)  upon  this  doctrine  has  already 
been  considered,^  and  here  it  only  remains  to  point  out  that 

(0)  Doe  d.  Clarke   v.  Smaridge,  7  9.37  ;  and  see  Wright  v.  Tracy,  Ir.  R., 

Q.  B.  n.-.7  ;  Doe  d.  Plunier  v.  Mainby,  8  C.  L.  478. 

10  Q.  B.  472.  (?)  Doe   d.  Thomson  v.  Amey,  12 

{}j)  Doe  d.  Chadborn  v.  Green,  9  A.  &  E.  476. 

A.  &  E.  058;  Reg.  v.  Chawton,  1  Q.  (.s)  See   Arden   v.  Sullivan,  14  Q. 

B.  247.  B.  832 ;  and  compare  Wyatt  v.  Cole, 
(7)  Cobb   V.  Stokes,  8   East,   358,       36  L.  T.  61.S. 

301  ;  Wilson  v.  Abbott,  3  B.  &  C.  89;  (s.9)  21  Ch.  D.  !) ;  and  see  ante,  Ch. 

Johnstone  v.  lludlestone,  4  B.  &   C.       IV.  sect.  1,  p.  86. 

1  Logan  I'.  Ilorron,  8  S.  &  R.  (Pa.)  4.50  ;  Van  Cortlandt  v.  Parkhurst,  5 
.Johns.  (N.  Y.)  VM. 

-  Walsh  ('.  Lonsdale.  —  The  dirUnn  of  .Icssol,  M.  R.,  would  not  apply  to 
a  void  lease,  for  that  is  not  oidinarily  a  lease  in  equity. 

356 


Ch.  VI.  S.  2.]     TENANCY  FROM  YEAR  TO  YEAR.        *222 

the  doctrine  applied  to  entry  upon  a  void  lease  (sss),  as  well 
us  to  entry  upon  an  agreement  for  a  lease,  and  that  Walsh 
V.  Lonsdale  has  no  application  to  entry  under  a  void  lease, 
except  so  far  as  it  may  be  construed  as  an  agreement  for  a 
future  lease. 

Terms  applicable  to  yearly  tenancy.  —  A  stipulation  for  two 
years'  notice  to  quit  is  inapplicable  to  a  yearly  tenancy 
within  the  meaning  of  the  doctrine  above  stated  (^).  So  is 
a  covenant  to  build ;  or  to  do  such  material  repairs  as  are 
not  usually  done  by  tenants  from  year  to  year  (ii).  But  a 
stipulation,  in  an  agreement  for  a  lease  for  more  than  three 
years,  to  keep  the  premises  in  good  tenantable  repair  during 
the  tenancy,  was  held  applicable  (x)  ;  as  also  a  stipulation, 
in  a  lease  not  by  deed,  for  seven  years,  to  paint  at  the  end 
of  the  seventh  year  (y) ;  and  a  stipulation  "  to  keep  open 
the  shop,  and  use  the  best  endeavours  to  promote  the  trade 
of  it  during  the  tenancy"  (2).  So  a  stipulation  that  the 
tenant  shall  be  paid  for  tillages  on  the  expiration  of  his  ten- 
ancy (a) ;  although,  perhaps,  it  may  not  apply  to  a  new 
reversioner,  who  accepts  rent  in  ignorance  of  such  a  stipula- 
tion (i).  A  proviso  for  re-entry  or  non-payment  of  rent  or 
non-performance  of  covenants  is  applicable  to  an  implied 
yearly  tenancy  (c).  Such  tenant  is  entitled  to  the  usual 
notice  to  quit ;  but  at  the  expiration  of  the  term  mentioned 
in  the  agreement  the  implied  tenancy  from  year  to  year  will 
cease  without  any  notice  to  quit  ((7). 

*  Rebutting  of  implied  terms   of  holding.  —  The   im-    [*222] 
plied  contract  can  of  course  be  rebutted,  and  there 
must  be  some  evidence  given  of  it.     Actual  payment  of  rent 

{sss)  Doe  d.  Rigge  v.  Bell,  5  T.  R.  {h)  Oakley   v.  Monck,  3  H.  &   C. 

471 ;  2  Sm.  L.  C.  8th  ed.  706 ;  34  L.  J.,  Ex.  137  ;  L.  R.,  1  Ex. 

(0  Tooker  v.  Smith,  1  H.  &  N.  732.  159;  4  H.  &  C.  251 ;  35  L.  J.,  Ex.  84. 

(m)  Bowes  V.  CroU,  6  E.  &  B.  264.  (c)  Thomas  v.  Packer,  1  H.  &  N. 

(x)  Richardson  v.  Gifford,  1  A.  &  669. 

E.  52.  {d)  Doe  d.  Tilt  v.  Stratton,4  Bing. 

(y)  Martin  v.  Smith,  L.  R.,  9  Ex.  446;    Doe    d.  Bramfield    v.   Smith,  G 

50;  43  L.  J.,  Ex.  43;  30  L.  T.  268;  East,  530;  Berry  v.  Lindley,  3  M.  & 

22  W.  R.  336.  G.  498,  514  ;  Doe  d.  Davenish  v.  Mof^ 

(2)  Sanders  v.  Karnell,  1  E.  &  F.  fatt,  15  Q.  B.  257,  265;  Tress  v.  Sav- 

356.                           .  age,  4  E.  &  B.  36. 

(a)  Brocklington   v.    Saunders,    13 
W.  R.  46,  Q.  B.  , 

35T 


*222       TENANCIES   EOR   LESS   THAN    YEARS,   ETC.    [Ch.  VI.  S.  2. 

is  not  always  essential,  although  that  is  perhaps  the  clearest 
proof  (e).  Where  the  payment  of  the  rent  is  allowed  to 
stand  over  by  mutual  consent,  that  is  sufficient  (/).  Pay- 
ment of  rent  does  not  of  itself  create  a  tenancy  from  year 
to  year,  but  is  only  evidence  from  which  a  jury  may  find  the 
fact  (^).  Where  payment  of  rent  unexplained  would  ordi- 
narily imply  a  yearly  tenancy  upon  the  previous  terms,  it  is 
open  to  the  payer  or  receiver  of  such  rent  to  prove  the  cir- 
cumstances under  which  such  payment  was  made,  for  the 
purpose  of  repelling  such  implication  (Ji). 

Where  tenant  holds  over.  —  Where  a  tenant  for  a  term  of 
years  holds  over  after  the  expiration  of  his  lease,  he  becomes 
a    tenant   on  sufferance  ;  ^  but  when  he  jjays,  or    expressly 

(e)  Cox  i\  Bent,  5  Bing.  185;  Vin-  ((/)  Finley  ?;.  Bristol  and  Exeter  R. 

cent   V.    Godson,  24    L.  J.,  Ch.  122;  Co.,  7  Exch.  415;  Jones  v.  Shears,  4 

Smith  L.  &  T.  27  (2nd  ed.).  A.  &  E.  832. 

(/)  Cox  V.  Bent,  5  Bing.  185;  Vin-  (A)  Doe  d.  Lord  v.  Crago,  6  B.  C. 

cent   V.  Godson,  24  L.   J.,  Ch.  122 ;  90 ;  Oakley  v.  Monck,  supra. 
Smith  L.  &  T.  27  (2nd  ed.). 

1  Holding  ov<ir ;  different  effects.  —  (a)  Mutual  consent  where  necessary. 
—  A  tenant,  liolding  over,  without  mutual  agreement,  is  in  New  Brunswick, 
Maine,  Massachusetts,  &c.,  tenant  at  sufferance.  Leighton  v.  Van  Wart,  1 
Pugs.  &  Bur.  (N.  B.)  489;  Bowman  v.  Avery,  3  Kerr  (N.  B.)  210;  Lithgow 
V.  Moody,  35  Me.  214;  Ciiesley  r.  Welch,  37  Id.  100;  Delano  v.  Montague,  4 
Cush.  (Mass.)  42  ;  Edwards  c  Hale,  9  Allen,  402. 

(b)  Tenancif  at  election  of  lessor ;  where.  —  7n  New  York  and  some  other 
states  the  tenant,  who  holds  over,  is  a  tenant  or  trespasser  at  the  election  of 
landlord.  Conway  v.  Starkweather,  1  Denio  (N.  Y.)  113;  Pickett  i'.  Bart- 
lett,  13  Daly  (N.  Y.)  229,  230  (per  Daly,  Ch.  J.);  Smith  v.  AUt,  7  Id.  492, 
493  (per  Daly,  Ch.  ,1.)  ;  Schuyler  c.  Smith,  51  N.  Y.  309;  Wolffe  v.  WollYe, 
09  Ala.  549,  552  (per  Somerville,  J.)  ;  Clinton  Wire  Co.  v.  Gardner,  99  111. 
151 ;  Heinphill  v.  Flynn,  2  Penn.  St.  144. 

(c)  Landlord's  consent  is  essential  in  all  cases  in  all  the  states.  Den  v.  Adams, 
12  N.  J.  L.  99 ;  Condon  v.  Barr,  47  N.  J.  L.  113,  114,  115 ;  Cairo,  &c.,  R.  K.  Co. 
V.  Wiggins  Ferry  Co.,  82  III.  230;  Ferine  i-.  Teague,  00  Cal.  440;  Smiths. 
Allt,  7  Daly  (N.  Y.)  492. 

Receipt  of  rent,  distraining,  or  other  recognition  of  tenancy  will  be  suffi- 
cient to  continue  it.  Condon  r.  Barr,  47  N.  J.  L.  113,  114,  115  (per  Knapp, 
.1.);  Allen  v.  Bartlett,  20  W.  Va.  40;  Critchfield  v.  Remaley,  21  Neb.  178; 
Johnston  V.  McLellan,  21  C.  P.  (Ont.)  .304. 

A  tenant  may  acquire  right  to  continuance  of  tenancy  by  delay  of  lessor. 
Chesiey  v.  Welch,  37  Me.  100.  In  Den  v.  Adams,  12  N.  J.  L.  99,  it  was  held 
tiiat  mere  expiration  of  time  was  not  sufficient.  And  in  Condon  v.  Barr,  47 
N.  .J.  L.  113,  that  a  demand  to  i)ay  rent  or  quit  (not  compli('(l  with)  was  not. 

In  Connecticut  it  is  provided  by  statute  (Gen.  Sts.  sec.  29()7)  that  holding 
orer  shall  not  renew  a  tenancy.  ^ 

358 


Cu.  VI.  S.  2.]     TENANCY  FROM  YEAR  TO  YEAR.        *222 

agrees  to  pay,  any  subsequent  rent,  at  the  previous  rate,  a 
new  tenancy  from  year  to  year  is  thereby  created  upon  the 
same  terms  and  conditions  as  those  contained  in  the  expired 
lease,  so  far  as  the  same  are  applicable  to  and  not  inconsist- 

In  Ke.ntuckij  (Gen.  Sts.  Ch.  QQ,  Art.  4,  sec.  1)  it  does  not  until  ninety  days 
have  passed. 

In  Qtaher,  if  continued  more  than  eight  days,  it  tacitly  renews  the  tenancy 
(Civil  Code,  sec.  1609). 

In  Delaware  (Laws  of  Del.  Ch.  120,  sec.  4)  and  Dakota  (Civil  Code,  sec. 
1119)  continued  possession  will  renew  the  tenancy,  unless  previous  written 
notice  has  been  given  to  terminate  it. 

(J)  Ordinary  presumption  is  that  tenant  holding  over  holds  from^e«r  to  year 
upon  the  terms  of  the  original  lease  so  far  as  applicable.  Miller  v.  Kidgely, 
19  111.  App.  306  ;  Wolffe  v.  Wolffe,  69  Ala.  549  ;  Wilgus  v.  Lewis,  8  Mo.  App. 
336  ;  Vroonian  v.  McKaig,  4  Md.  450,  454  {per  Le  Grand,  C.  J.)  ;  De  Young 
V.  Buchanan,  10  G.  &  J.  (Md.)  149. 

A  tenant  holding  over  in  Maine  and  Massachusetts  cannot  be  more  than  a 
tenant  at  will.  Bennock  r.  Whipple,  12  Me.  346  ;  Wheeler  v.  Cowan,  25  Id. 
283;  Longfellow  J'.  Longfellow,  54  Id.  240;  Kendall  v.  Moore,  30  Id.  327; 
Emmons  v.  Scudder,  115  Mass.  367. 

(e)  Change  of  terms. — A  tenant  may  become  a  tenant  from  month  to  month 
if  parties  so  agree,  Macgregor  v.  Defoe,  14  Ont.  87,  92;  or  from  week  to  week, 
or  quarter  to  quarter  {per  Wilson,  C.  J.). 

Whether  tenancy  becomes  from  year  to  year  ox  from  month  to  month  is  a 
question  of  fact,  the  payment  of  monthly  or  yearly  rent  being  an  important 
circumstance,  sometimes  decisive.  Withnell  v.  Petzold,  17  Mo.  App.  669  ;- 
Hammon  i\  Douglas,  50  Mo.  434,  437  ;  Vegely  v.  Robinson,  20  Mo.  App. 
199,  203  (per  Phillips,  P.  J.)  ;  Ins.  Co.  v.  Nat.  Bank,  71  Mo.  58;  Prindle  v. 
Anderson,  23  Wend.  (N.  Y.)  616. 

LTsually  a  tenant  for  month  or  months,  holding  over,  becomes  tenant  from 
month  to  month.  Prickett  v.  Hitter,  16  111.  96;  McPherson  v.  Norris,  13  Q.  B. 
(Ont.)  472. 

A  distinct  understanding  will  overcome  presumptions  from  payment  of 
annual  rent.  Waring  v.  Louisville,  &c.,  R.  R.  Co.,  19  Fed.  Rep.  863.  Notice 
to  tenant,  that  if  lie  hold  over  it  must  be  from  month  to  month,  will  usually 
change  the  tenancy  into  a  tenancy  from  month  to  month,  whether  tenant  con- 
sent or  not.     Shipman  v.  Mitchell,  64  Tex.  174. 

Likewise,  notice  of  a  change  in  terms  of  tenancy  before  expiration  binds 
tenant  if  he  continue  to  occupy.  Hunt  v.  Bailey,  39  Mo.  257.  Tlie  contrary' 
was  held  in  De  Young  v.  Buchanan,  10  G.  &  J.  (Md.)  149,  in  Sturdee  v.  Mer- 
ritt,  3  Kerr  (N.  B.)  641.  In  Hilliard  v.  Gemmell,  10  Ont.  504,  notice  to  lessee 
that  if  he  held  over  it  must  be  at  increased  rent  was  held  evidence  for  tiie 
jury  of  a  tenancy  from  year  to  year  at  the  advanced  price. 

(/)  Presumptions  ichere  mutual  consent  is  required.  —  In  those  states  where 
mutual  consent  is  essential  to  a  continuance  of  the  tenancy,  continued  occupa- 
tion for  any  length  of  time  will  usually  establish  the  relation  as  against  the 
tenant.  Longfellow  v.  Longfellow,  54  Me.  240;  Bonney  v.  Foss,  62  Id.  248  ; 
Kendall  v.  Moore,  30  Id.  327  ;  Dimock  v.  Van  Bergen,  12  Allen  (Mass.) 
551. 

An  assignee  may,  by  admissions,  become  tenant  from  year  to  year.  Doe  d. 
Peters  v.  PcUetier,  4  Allen  (N.  B.)  33. 

359 


*223      TENANCIES   FOE,   LESS   THAN   YEARS,   ETC.     [Ch.  VI.  S.  2. 

ent  with  a  yearly  tenancy  (i).  This,  however,  appears  to 
be  a  matter  of  evidence  rather  than  of  law  (A-).  The  land- 
lord may  show  that  he  accepted  the  rent  from  time  to  time 
under  a  mistake,  and  upon  the  supposition  that  one  of  the 
lives  for  which  the  lease  was  granted  continued  in  exist- 
ence (?)  ;  or  a  new  reversioner  may  show  that  he  knew 
nothing  of  any  special  and  unusual  terms  in  the  original 
lease,  and  therefore  ought  not  to  be  deemed  to  have  assented 
to  them,  so  as  to  render  himself  liable  to  such  terms  (m),  or 
the  tenant  may  show  any  facts  leading  to  an  oj)posite  con- 
clusion, as  that  the  continued  occupation  was  only  provis- 
ional and  in  expectation  of  a  new  lease  on  new  terms. 

In  the  absence,  however,  of  any  evidence  one  way  or  the 
other,  it  seems  that  upon  a  holding  over  and  payment  of 
rent,  the  jury  would  be  directed  to  find  a  tenancy  on  the 
terms  of  the  exjDired  lease,  and  that  this  would  be  so  even 
if  there  had  been  an  assignment  of  the  reversion  prior  to 
the  holding  over  (n).  Any  such  new  tenancy  (when  im- 
plied) will  be  deemed  to  have  commenced  at  the  same  time 
of  the  year  as  the  original  tei'm,  and  notice  to  quit 
[*223]  should  be  given  *  accordingly  (o).  Even  if  the  rent 
be  increased,  the  tenancy  will  be  subject  to  covenants 
or  stipulations  similar  to  those  contained  in  the  former  lease, 
unless  others  are  expressly  agreed  on  (/>)•  It  will  also  be 
subject  to  the  custom  of  the  country,  so  far  as  such  custom 
is  not  excluded  by  the  terms  of  the  expired  lease  ((/).  It 
may  be  determined  by  notice  at  the  end  of  the  first  or  any 
subsequent  year  of  the  tenancy  (r),  or  under  an   implied 

(0  Bisliop   V.  Howard,  2   B.  &  C.  East,  312;  Roe  d.  .Ionian  v.  Ward,  1 

100;   Hyatt  v.  Griffiths,  17  Q.  B.  505;  H.  Blac.  9(5 ;  Doe  d.  Martin  v.  Watts. 

Chit,  on  Contracts,  295  (7th  ed.).  7  T.  R.  83;  Doe  d.  Tucker  v.  Morse, 

{k)  Mayor  of  Tiietford  v.  Tyler,  8  1  B.  &  Ad.  3(55. 
Q.  B.  95;  2  Smith  L.  C.  90  ((ith  ed.).  (/>)  Di^fby    v.  Atkinson,   4   Camp. 

(/)  Doe  d.  Lord  v.  Crafjo,  (5  C.  B.  90.  275. 

(;h)  Oakley  v.  Monek,  3    H.  &  C.  {q)  llutton  v.  Warren,  1   M.  &  W. 

700  ;  .34  L.  J.,  Ex.  137  ;  L.  R.,  1   Ex.  40(5. 
169;  4  H.  &  C.  251  ;  .35  L.  .J.,  Ex.  84.  (r)  Doe  d.  Clarke  v.  Smaridpte,   7 

(n)  See  Wyatt  v.  Cole,  .30  L.  T.013.  Q.  B.  957  ;  Doe  d.  riumcr  i;.  Mainby, 

(o)  Doe  d.  Castleton  v.  Samuel,  5  10  Q.  B.  473. 
Esp.  173;  Doe  d.  Spicer  v.  Lea,  11 

3G0 


Cii.  VI.  S.  2.]     TENANCY  FROM  YEAR  TO  YEAK.        *223 

proviso  for  re-entry  similar  to  that  contained  in  the  expired 
lease  (s). 

Acceptance  of  rent  by  remainderman.  —  If  a  remainderman 
accept  money,  or  anything  else  reserved  as  rent  in  a  lease 
granted  by  the  previous  tenant  for  life,  which  became  void 
on  the  death  of  such  tenant  for  life,  he  does  not  thereby 
confirm  and  establish  the  lease  for  the  residue  of  the  term 
therein  expressed  to  be  granted  (without  a  previous  memo- 
randum in  writing  pursuant  to  13  Vict.  c.  17,  s.  1),  but  he 
creates  a  new  implied  tenancy  from  year  to  year  as  between 
him  and  the  tenant  on  the  old  terms,  so  far  as  they  are  ap- 
plicable to  and  not  inconsistent  with  a  yearly  tenancy,  and 
the  tenant  is  entitled  to  the  usual  notice  to  quit  (f)  :  unless, 
indeed,  the  rent  reserved  be  so  grossly  inadequate,  with 
reference  to  the  annual  value  of  the  propert}^,  that  the  jury 
ought  to  presume  and  find  that  no  such  new  tenancy  was 
intended  to  be  created  (it).  So  any  special  and  unusual 
terms,  of  which  the  reversioner  was  ignorant  when  he  ac- 
cepted the  rent,  will  not  bind  him  (.r),  unless  the  Settled 
Land  Act  applies.  Any  such  new  tenancy  will  be  deemed 
to  have  commenced  from  the  same  day  of  the  year  as  the 
original  term,  and  the  notice  to  quit  should  be  given  accord- 
ingly 0/)- 

By  attornment  to  prior  mortgagee.  —  If  a  mortgagee  induce 
or  compel  a  subsequent  tenant  of  the  mortgagor  to  attorn  to 
and  pay  him  rent,  that  will  not  operate  to  confirm  the  lease 
for  the  whole  time  thereby  .granted,  but  will  create  between 
the  mortgagee  and  the  tenant  a  new  tenancy  from  year  to 
year  (z)  ;  and  such  new  tenancy  will  be  subject  to  the  terms 


(s)  Thomas   v.  Packer,  1  H.  &  N.  (x)  Oakley   v.   Monck,  3  H.  &  C. 

660;  Hayne  v.  Gumming,   16    C.  B.,  706;  34  L.  J.,  Ex.  137;  L.  R.,  1  Ex. 

N.  S.  421.  159 ;  4  H.  &  C.  251 ;  35  L.  J.,  Ex.  84. 

(0  Doe  d.  Martin  i-.  Watts,  7  T.  R.  As   to   application   of   Settled  Land 

85 ;  Doe  d.  Tucker  v.  Morse,  1  B.  &  Act,  see  p.  9,  ante. 
Adol.   365;    Smith   L.   &  T.   24,   25  (y)  Roe  d.  Jordan  v.  Ward,  1  H. 

C2nd  ed.).  Blac.  06;  Doe  d.  Collins  v.  WcUer,  7 

(u)  Doe  d.  Brune  v.  Prideaux,  10  T.  R.  478. 
East,  158;  Denne  d.  Brune  v.  Raw-  (z)  Doe  d.  Hughes  r.  Bucknell,  8 

lins.  Id.  261  ;  Doe  d.  Lord  v.  Crago,  C.  &  P.  567 ;  Doe  d.  Prior  v.  Ongley, 

6  C.  B.  90.  10  C.  B.  25  (3rd  point). 

361 


*224      TENANCIES   FOR   LESS   THAN   YEARS,    ETC.    [Ch.  VI.  S.  3. 

and  conditions  of  the  lease,  so  far  as  the  same  are  applicable 
to  and  not  inconsistent  with  a  yearly  tenancy  (a). 

Not  by   agreement  to   pay  an    increased  rent.  —  If,  whilst  a 

tenant  from  year  to  year  is  in  possession  of  lands  under  an 

agreement  reserving  a  certain  rent,  he  agrees  with 

[*224]  his  landlord  to  *  pay  an  increased  or  reduced  rent, 

this  will  not  have  the  effect  of  then  creating  a  new 

tenancy  (i). 

Underleases.  —  A  demise  by  a  tenant  from  year  to  year  to 
another  also  to  hold  from  year  to  year,  is  in  legal  operation 
a  demise  from  year  to  year  only  during  the  continuance  of 
the  original  demise  to  the  intermediate  landlord  (c).  A 
tenant  from  year  to  year,  underletting  from  3'ear  to  year, 
has  a  reversion  which  entitles  him  to  distrain  (c?).  If  a 
tenant  from  year  to  year  make  a  lease  for  twenty-one  years, 
such  term  will  cease  whenever  the  tenancy  from  year  to 
year  is  legally  determined  (e). 


Sect.  3.  —  Tenancy  for  less  than  a   Year.  —  Lodgings. 

In  leases  of  houses  and  apartments  for  an  indefinite  period 
less  than  a  year,  the  hiring  will  be  construed  to  be  quarterly, 
monthly  or  weekly,  according  to  the  circumstances  of  each 
case  and  the  custom  of  the  place  or  country.^  Of  these 
circumstances  the  principal  appears  to  be  the  payment  of 
rent:  therefore,  where  a  tenancy  was  created  of  wharfs, 
warehouses,  &c.,  at  a  certain  rent  per  quarter,  the  tenancy 
to  commence  on  the  14th  June,  the  tenant  paying  a  quarter's 
rent  on  that  day  and  giving  security  for  the  payment  of  a 
quarter's  rent  in  advance  during  his  tenancy,  it  Avas  held  that 

(a)  Cole  Ejcc.  445.  (r)  Pike  v.  Eyre,  9  R.  &  C.  009. 

(/;)  Doo  d.  Alonck  ;'.  Gecckie,  5  Q.  (d)  Curtis  v.  Wheeler,  Moo.  &  M. 

B.  841;    1   C.  &   K.   .307;   Clarke    v.  493. 

Moore,  1  .Ton.  &  Lat.  723;   Crowley  (e)  Mackay  v.  Mackreth,  4  Doug. 

V.  Vitty,  7  Exch.  310;    liurrowes  v.  213. 
Gradin,  1  I).  &  L.  213. 

^  Lease  at  will  V7ith  monthly  rent  is  from  month  to  month.     Orser  r. 
Vernon,  14  C.  P.  (Ont.)  673;  O'Neil  v.  Wells,  2  Russ.   &  dies.  (N.   S.)  20r) 
Warner  v.  Hale,  05   111.  .305;    Huyscr  v.  Chase,   13   Mich.  08;   Woodrow  i: 
Miciiael,  13  Id.  187;  contra,  Ridgely  v.  Stillwell,  25  Mo.  570. 

362 


Cn.  VI.  S.  3.]        TENANCIES    FOR   LESS    THAN   A    YEAR.  *225 

he  became  tenant  from  quarter  to  quarter  and  not  from  year 
to  year  (/).  So  where  the  tenant  is  '•'•always  to  be  subject  to 
quit  at  three  months'  notice  "  he  will  be  deemed  a  quarterly 
tenant  (^).  Where  premises  are  let,  not  for  any  definite 
period,  but  the  tenant  is  to  give  up  possession  at  any  time 
on  one  month's  notice,  that  creates  a  tenancy  from  month 
to  month  (A).  So  a  demise  of  houses  or  of  lodgings  at  a 
monthly  or  weekly  rent  affords  a  presumption  of  a  monthly 
or  Aveekly  tenancy  (i).  Month  in  any  legal  document 
means  lunar  ^  month,  unless  calendar  month  be  specified  (Ji), 
or  there  be  admissible  evidence  to  show  that  a  calendar 
month  was  intended  (Q.  Where  a  person  hired  a  furnished 
house  for  three  lunar  months,  and  a  receipt  was  given  for 
the  rent  for  that  period,  but  he  continued  in  possession 
afterwards,  it  was  held  that  a  jury  were  warranted 
in  finding  that  the  subsequent  occupation  *was  on  [*225] 
a  weekly  hiring  (wz).  By  agreement  on  the  19th  of 
April,  certain  premises  were  let  at  the  yearly  rent  of  42/., 
payable  quarterly ;  the  first  payment,  11.  ISs.  GcZ.,  to  be 
made  on  the  24th  of  June  next,  being  the  proportion  of  rent 
due  up  to  that  time.  The  lessee  was  to  enjoy  at  the  said 
rent  until  one  of  the  parties  should  give  to  the  other  six 
months'  notice  to  quit,  and  at  the  expiration  of  "  any  "  such 
notice  to  leave  the  premises  in  as  good  condition,  &c.  This 
was  held  to  be  a  half-yearly  tenancy,  commencing  from  the 
24th  of  June ;  and  that  a  notice  to  quit  given  at  Midsummer 
and  expiring  at  Christmas  was  valid  (y;).  Where  the  de- 
fendant hired  of  the  plaintiff  apartments  in  his  dwelling- 
house  at  a  fixed  rent,  payable  half-yearly,  and  entered  into 

(/)  Wilkinson  v.  Hall,  3  Bing.  N.  (A)  Simpson  v.  Margitson,  11  Q.  B. 

C.  508.  23. 

{(j)  Kemp  V.  Derrett,  3  Camp.  510 ;  (/)  lb.  and  see  as  to  agreement  for 

Cole  Ejec.  31.  hire  of  furniture,  Hutton    v.  Brown, 

(/()  Doe  of.  Landsell  v.  Gower,  17  45  L.  T.  343. 
Q.  B.  589.  (,„)  Towne  v.   Campbell,  3  C.  B. 

(()  Huffell  V.  Armitstead,  7  C.  &  P.  921. 
56.     And  see  as    to   what   notice   to  (m)  Doe  d.  King  v.  Graton,  18  Q.  B. 

quit   is   required,  post,   Chap.  VIII.,  496;  21  L.  J.,  Q.  B.  276. 
Sect.  7. 

^  In  tlie  United  States,  unless  otherwise  specified,  a  calendar  month.     See 
post. 

363 


*225     TENANCIES   FOR   LESS   THAN   YEARS,    ETC.       [Ch.  VI.  S.  3. 

possession  at  ]Michaelmas,  1822 :  and  at  Lady-day,  1823,  paid 
one  half-year's  rent,  and  at  the  Midsummer  following  gave 
up  possession  without  having  given  notice  to  quit ;  but  at 
Michaelmas  in  the  same  year  he  paid  another  half-3^ear's 
rent,  though  at  Lady-day,  1824,  he  refused  to  pay  a  third 
half-year's  rent ;  in  an  action  for  use  and  occupation  for  that 
half-year's  rent,  it  was  held  that  a  tenancy  from  jqav  to  year 
could  not  be  inferred  from  these  facts,  and  therefore  that 
the  action  was  not  maintainable  (o).  A  general  letting  at  a 
yearly  rent,  though  payable  half-yearly  or  quarterly,  or  an 
accei^tauce  of  yearly  rent  or  rent  measured  by  any  aliquot 
part  of  a  year,  is  evidence  of  a  taking  from  year  to  year  (^^). 
Where  premises  are  let,  at  a  yearly  rent  payable  weekly, 
with  power  to  determine  the  tenancy  at  three  months'  notice 
from  any  quarter  day,  that  creates  a  yearly  tenancy,  deter- 
minable as  agreed  (g). 

Furnished  house.  —  Where  a  house  is  let  ready  furnished 
the  rent  is  deemed  to  issue  out  of  the  realty,  and  not  partly 
out  of  the  furniture  (r). 

Lodgings.  —  Lodgings  may  be  let  in  the  same  manner  as 
lands  and  tenements.  A  lodger  is  a  tenant  if  the  premises 
are  let  to  him  (s)-^ 

Protection  of  lodger's  goods  from  distress.  —  Prior  to  the 
Lodger's  Goods  Protection  Act,  1871,  care  had  to  be  taken 
by  the  lodger  to  ascertain  that  the  rent  of  the  house  had 
been  paid  up,  as  if  not,  the  goods  of  the  lodger  would  be 
liable  to  a  distress  for  rent  due  from  his  own  landlord.     But 


(o)  Wilson  V.  Abbott,  3  B.  &  C.  88.  (s)  Cook  r.  Humber,  11  C.  B.,  N. 

(p)    Kichardson    ;;.    Langridge,    4  S.  33 ;   31   L.  J.,  C.   P.  73.     As  to 

Taunt.   128;    Doe  d.   Hull  v.  Wood,  executory  agreeintMit  to  let  lodgings, 

14  M.  &  W.  082.  see  ante,  p.  87.     As  to  "  lodger  "  fran- 

(7)  Rex  V.  Hcrstmonceaux,  7  B.  &  chise,  see  Bradley  v.  Baylis,  L.  R.,  8 

C.  551.  Q.  B.   D.   105;    C.  A.;    Ancketill   i;. 

(»•)  Newman  v.  Andcrton,  2  Bos.  &  Baylis,  L.  R.,  10  Q.  B.  1).  577. 
P.  New  R.  224. 


'  Lease  of  apartments  of  which  lessee  has  exclusive  possession  creates  a 

tenancy.      I'orlcr  r.  Merrill,  \'2\  Mass.  534. 

Board  and  lodgings.  —  In  Wilson  v.  Martin,  1  Denio  (N.  Y.)  002,  and 
White  r.  MayiKird,  111  Mass.  250,  it  was  lield  that  a  contract  for  hoard  and 
lodgings  in  a  boardnig-houHc,  though  with  specified  rooms,  was  not  a  tenancy. 

864 


Ch.  VI.  S.  4.]  TENANCY   AT   WILL.  *226 

that  act,  which  is  fully  set  out  hereafter  (t),  provides  a 
simple  process  for  freeing  the  lodger's  goods  from  a  distress 
of  this  kind.  Previously  to  taking  the  premises,  however, 
it  may  sometimes  be  prudent  to  make  inquiries  of  the  tax- 
gatherer  and  collector  of  the  parochial  rates,  as  if 
distresses  be  levied  *  for  them,  it  may  cause  consid-  [*226] 
erable  inconvenience  and  annoyance  to  the  lodger, 
although  his  goods  are  not  liable  to  such  distresses. 

Use  of  knocker,  door  bell,  &c.  —  A  lodger  has  a  right  to 
the  use  of  the  door  bell,  the  knocker,  the  skylight  of  the 
staircase,  and  the  water-closet,  unless  it  be  otherwise  stipu- 
lated at  the  time  of  taking  the  lodgings ;  therefore  if  the 
landlord  deprive  the  lodger  of  the  use  of  either,  an  action 
lies  (h). 

Lodgings  to  prostitutes.  —  If  a  person  let  lodgings  to  an 
immodest  woman  to  enable  her  to  consort  with  the  other 
sex,  or  if  not  knowing  her  habits  at  the  time  of  letting,  but 
becoming  acquainted  with  her  habits  afterwards,  he  permits 
her  to  continue  his  tenant,  he  cannot  recover  in  an  action 
for  the  lodgings  so  let ;  but  if  the  woman  merely  lodge  in 
the  house,  and  receive  her  visitors  elsewhere,  the  rent  may 
be  recoverable  (x). 

Larceny  of  lodger's  goods.  —  A  lodging-house  keeper  is  not 
responsible  to  his  lodger  if  property  of  the  latter  be  stolen 
from  his  apartments,  either  by  another  lodger  or  by  a  third 
person :  the  principle  is,  that  the  lodger  must  himself  take 
care  of  his  own  goods  ;  there  is  a  distinction  in  this  respect 
between  an  innkeeper  and  a  lodging-house  keeper  (?/). 


Sect.  4.  —  Tenancy  at   Will. 

What  constitutes  a  tenancy  at  -will.  —  A  tenancy  at  will  is 
where  lands  or  tenements  are  let  by  one  man  to  another,  to 
hold  at  the  will  of  the  lessor ;  in  this  case  the  lessee  is  called 

(t)  Chap.  X.,  Sect.  7  (f).  Moo.  251 ;  Girardy  v.  Eicliardsoii,  1 

(w)  Underwood  v.  Burrows,  7  C.  &       Esp.  13. 
P.  26.  Oy)  Holder  v.  Soulby,  8  C.  B.,  N.  S. 

(a:)  Appleton  v.  Campbell,  2  &  P.  254 ;  29  L.  J.,  C.  P.  246 ;  Dansey  v. 
347;  Jennings  v.  Throgmorton,  Ry.  &       Kichardson,  3  E.  &  B.  144;  Clench  v. 

Dr.  Arenberg,  1  C.  &  E.  42. 

365 


*226     TENANCIES   FOR   LESS   THxVN   YEARS,    ETC.      [Ch.  VI.  S.  4. 

tenant  at  Avill,  because  he  has  no  certain  or  sure  estate,  for 
the   lessor  may  put   him  out  at  any  time  he  pleases  (z).i 

(c)  Lit.  s.  68 ;  Cole  Ejec.  448. 

1  Tenancy  at  •will. —  (a)  ffow  created. —  It  maybe  created  by  writing, 
Murray  v.  Clierrington,  99  Mass.  229,  Say  v.  Stoddard,  27  Ohio  St.  478;  or  by 
parol.  Button  v.  Colby,  3o  Me.  505  ;  Goodenow  v.  Allen,  08  Id.  308;  expressly, 
Laxton  v.  Rosenberg,  11  Ont.  199;  Humphries  v.  Humphries,  3  Ired.  (N.  C.) 
L.  362 ;  Stedman  v.  Mcintosh,  4  Id.  291 ;  Orser  v.  Vernon,  14  C.  P.  (Ont.) 
673;  or  impliedl;/,  Jiickson  r.  Bradt,  2  Caines  (N.  Y.)  169;  Rich  v.  Bolton, 
46  Vt.  84  ;  Herrell  v.  Sizeland,  81  111.  457. 

(6)  Local  decisions  and  statutes. — In  Maine  and  Massachusetts  all  oral  leases 
are  tenancies  at  will.  Ellis  v.  Paige,  1  Pick.  (Mass.)  43  ;  Coffin  v.  Lunt,  2  Id. 
70;  Curtis  i'.  Galvin,  1  Allen  (Mass.)  215;  Curtis  v.  Treat,  21  Me.  525;  Cun- 
ningham V.  Holton,  55  Id.  33  ;  White  v.  Elwell,  48  Id.  360  ;  Page  i-.  McGlinch, 
63  Me.  472. 

In  New  Hampshire  they  are  prima  facie  tenancies  at  will.  Whitney  v. 
Swett,  22  N.  H.  10  (which  holds  that  they  are  conclusively  so)  ;  Currier  v. 
Pcrley,  24  Id.  219,  225,  229  (per  Bell,  J.)  ;  Hazeltine  v.  Colburn,  31  Id.  466, 
471  {per  Bell,  J.)  ;  Weeks  v.  Sly,  61  Id.  89  (per  Smith,  J.). 

In  loica  (Rev.  Code,  sec.  2014)  and  Kansas  (Compiled  Laws,  sec.  3204), 
occupants  with  consent  are  presumed  to  be  tenants  at  will  until  the  contrary 
is  shown. 

In  Indiana  (Rev.  Sts.  sec.  5208)  a  tenancy  is  conclusively  from  j-ear  to  year, 
unless  expressly  made  at  will. 

In  South  Carolina  (Gen.  Sts.  sec.  1812)  leases  not  otherwise  stipulated  are 
held  to  be  for  a  year. 

In  Delaware  (Laws  of  Del.  ch.  101,  sec.  15)  no  estate  is  at  will  if  it  can  be 
lield  from  year  to  year.  Where  no  term  is  limited  (ch.  120,  sec.  2),  the  ten- 
ancy from  year  to  year,  except  as  to  houses  and  lots,  usually  let  for  less 
time. 

In  Georgia  (Code,  sec.  2290),  if  no  time  is  specified,  the  tenancy  is  for  a 
calendar  year. 

In  Dakota  (Civil  Code,  sec.  1115)  tenancies  not  otherwise  expressed,  except 
as  to  lodgings  and  places  where  there  is  a  different  custom,  are  for  one  year. 

In  Quebec  tenancies  without  leases  are  annual  (Civil  Code,  sec.  1()57). 

In  Rhode  Island  indefinite  tenancies  are  from  year  to  year  (Pub.  Sts.  ch. 
232,  sec.  5). 

In  Missouri  tenancies  not  created  by  writing,  of  stores,  shops,  houses,  or 
other  buildings  in  cities  or  villages,  are  by  statute  (Rev.  Sts.  sec.  3078)  from 
month  to  month.  Those  not  affected  by  statute  (whether  created  by  parol  or 
by  holding)  arc  from  year  to  year  or  from  month  to  month,  according  to  the 
presumed  intentions.  Withnell  v.  Petzold,  17  Mo.  App.  073,  074  (;)(/•  Rom- 
bauer,  J.) ;  Hammon  v.  Douglas,  50  Mo.  434,  437  {per  Bliss,  J.). 

(c)  Generally.  — In  the  provinces  and  majority  of  the  states  it  is  a  question 
upon  the  particular  facts,  whether  the  tenancy  is  at  will  or  from  year  to 
year,  time  of  rent  payments,  j)urposes  of  tenancy,  erection  of  improvements, 
being  leading  circumstances. 

The  presumption  naturally  is  that  continuance  after  a  term  is  from  year  to 
year.  The  terms,  however,  are  frequently  clianged.  Sometimes  a  tenancy  for 
years  is  changed  into  one  from  month  to  month,  sometimes  into  one  at  will. 

Termination.  —  See  post,  Chap.  VIII.  sec.  1,  notes. 

3GG 


Cii.  VI.  S.  4.]  TENANCY   AT   WILL.  *227 

Either  party  may  at  any  time  determine  a  strict  tenancy  at 
will,  although  expressed  to  be  held  at  the  will  of  the  lessor 
only  (a).^  Such  tenancy  must  be  determined  by  a  demand 
of  possession  or  otherwise  before  an  action  of  ejectment  can 
be  maintained  against  the  tenant  (6).  The  granting  of  a 
lease  to  a  third  person  by  the  lessor  of  a  tenant  at  will, 
though  it  determines  the  tenancy  at  will  as  against  the 
lessor,  does  not  give  him  such  a  right  of  entry  as  is  contem- 
plated by  3  &  4  Will.  4,  c.  27,  s.  2  (c}.  AVhere  there  is  a 
tenancy  at  will,  at  a  fixed  rent,  such  rent  may  be  distrained 
for  (c?).  Where  there  is  no  such  fixed  rent  an  action  for 
use  and  occupation  may  be  maintained  (e). 

How  created.  —  Where  a  person  lets  land  to  an- 
other without  limiting  any  certain  *  or  determinate   [*227] 
estate,  a  tenancy  at  will  is  thereby  created  (/)•     A 
person  who  lives  in  a  house  rent  free,  by  the  sufferance  of 

(a)  Co.  Lit.  55  a;    Smith  L.  &  T.  E.  &  E.  614;  30  L.  J.,  Q.  B.  94;  Doe 

17  (2nd  ed.).  d.  Davies  v.  Tliomas,  6  Exch.  858. 

(6)  Cole  Ejec.  58,  453.  (e)  Chap.  XIV.,  post. 

(f)  Hogan  t'.  Hand,  2  W.  R.  673 ;  4  (./")  Com.  Dig.  tit.  Estates,  (H.  1)  ; 

L.  T.  465,  P.  C.  Richardson   v.   Langridge,   4    Taunt. 

(f/)  Anderson  v.  Midland  R.  Co.,  3  128 ;  Smitli  L.  &  T.  20  (2nd  ed.). 

(d)  Contingent  tenancies,  —  Tenancies  at  will  are  sometimes  made  subject  to 
contingencies,  the  happening  or  expiration  of  which  terminate  them  without 
notice.     See  post,  Chap.  VIII.  sec.  1,  note  2,  and  sec.  2,  notes. 

Tlie  subject  of  conditional  limitations,  both  upon  tenancies  at  will  and 
other  tenancies,  is  there  examined  and  instances  are  given.  It  is  quite  doubt- 
ful if  a  tenancy  at  will  can  be  limited  conditionally  in  Maine.  The  statute 
there  prohibits  the  termination  of  tenancies  at  will  in  any  way  but  by  the 
statutory  notice  to  quit,  or  by  mutual  consent.  Rev.  Sts.  Me.  ch.  94,  sec. 
2  ;  Cunningham  v.  Ilorton,  57  Me.  420;  Goodenow  v.  Allen,  68  Me.  308;  but 
see  Sullivan  v.  Carberry,  67  Id.  531.  (See  notes  upon  "Tenancies  .  .  .  dis- 
tiuguisht'd,"  &c.,  and  "  Holding  over,"  sec.  2,  ante.) 

1  Tenancies  strictly  at  will.  —  Notice  to  quit  is  not  necessary  at  com- 
mon law  to  terminate  a  strict  tenancy  at  will.  Jackson  v.  Bradt,  2  Caines 
(N.  Y.)  169;  Jackson  v.  Rogers,  2  Caines  Cas.  (N.  Y.)  314,  318  ;  Rich  v.  Bol- 
ton, 46  Vt.  84 ;  Phillips  v.  Covert,  7  Johns.  (N.  Y.)  1,  4  (per  Kent,  C.  J.)  ;  4 
Kent's  Com.  (13th  ed.)  sec.  114. 

Such  tenant,  however,  is  entitled  to  reasonable  time  to  remove  his  family 
and  effects,  and  to  free  ingress  and  egress  to  harvest  crops.  Currier  v.  Earl, 
13  Me.  216,  224  (/w  Weston,  C.  J.)  ;  Ellis  v.  Paige,  1  Pick.  (Mass.)  43;  Curt 
V.  Lowell,  19  Id.  25,  26,  27  (per  Wilde,  J.),  and  statutory  notice  is  now  usually 
required. 

See  post,  Chap.  VIII.  sec.  7,  note,  "  The  Shorter  Tenancies  " 

367 


*227      TENANCIES  FOE   LESS   THAN    YEARS,    ETC.      [Ch.  VI.  S.  4. 

tlie  owner,  is  a  tenant  at  will  (^).  A  mere  permis.sion  to 
occupy  land  constitutes  a  tenancy  at  will  only  (A).  An 
interest  of  freehold  or  quasi  freehold  character  cannot  be 
created  orally  or  by  a  mere  written  agreement  (not  under 
seal)  :  a  person,  therefore,  holding  under  such  an  agreement 
is  a  tenant  at  will,  and  (after  determination  of  such  tenancy) 
removable  by  ejectment,  without  prejudice  to  his  equitable 
rights  (Q.  Courts  of  law  have  of  late  jxars  leaned  as  much 
as  possible  against  construing  demises,  where  no  certain 
term  is  mentioned,  to  be  tenancies  at  Avill,  but  have  rather 
held  them  to  be  tenancies  from  year  to  year  so  long  as  both 
parties  please,  especially  where  an  annual  rent  is  reserved  (A;), 
If  an  agreement  be  made  to  let  premises  so  long  as  both 
parties  please,  and  reserving  a  compensation  accruing  de  die 
in  diem,  and  not  referable  to  a  year,  or  any  aliquot  part  of 
a  year,  it  does  not  create  a  holding  from  year  to  year,  but  a 
tenancy  at  will  strictly  so  called ;  and  though  the  tenant 
has  expended  money  on  the  improvement  of  the  premises, 
that  does  not  give  him  a  right  to  hold  them  until  he  be  in- 
demnified (?).  If  one  demise  a  tenement  to  another,  except- 
ing the  new  house  for  his  habitation  when  he  pleases  to  stay 
there,  and  at  other  times  for  the  use  of  the  lessee  ;  the  lessee 
has  the  new  house  as  tenant  at  will  (««).  The  words  "  I 
give  you  a  close  to  enjoy  as  long  as  I  please,  and  to  take 
again  when  I  please,  and  you  shall  pay  nothing  for  it," 
create  a  tenancy  at  will  Qti).  So  a  party  having  become 
tenant  to  two  others  at  their  u'ill  and  pleasure^  at  the  rate 
of  25Z.  4s.  per  annum,  payable  quarterly,  and  having  re- 
mained in  possession  under  this  agreement  for  two  years, 
and  paid  a  year's  rent,  after  which  the  lessors  distrained  for 
a  quarter's  rent,  was  held  to  be  tenant  at  will  and  not  from 


(7)  Rex  V.  Collctt,  Huss.  &  Ry.  C.  Doe  d.  Hull  v.  Wood,  14  M.  &  W. 

C.  498;  Hex  v.  .Tol)linK,  M.  •'')2r) :  Doe  ()82;  Anderson  v.  Midland  R.  Co.,  30 

(1.  (Jroves  V.  Grove.s,  10  Q.  IJ.  48(5.  L.  J.,  Q.  B.  94. 

(/<)  Doc  d.  Hull  V.  Wood,  14  M.  &  (/)     Richardson    v.    Lan{:cridge,    4 

W.  (!82.  Taunt.   1'28. 

(i)  Dossce  V.  East  I.  Co.,  8  W.  R.  (w)    Cudlip    v.    Rnndall,    3    Salk. 

245,  P.  C.  lf)0. 

(/■)  Tinimins  t-.  Rawlinson,  3  Rurr.  (h)  Rex  v.  Fillonglcy,  Cald.  509. 
IGOO;  1  W.  Blac.  533;  Co.  Lit.  55; 

3G8 


Ch.  VI.  S.  4.]  TENANCY   AT   WILL.  *228 

year  to  year  (o).  If  a  tenant  whose  lease  has  expired  be 
permitted  to  continue  in  possession  pending  a  treaty  for  a 
further  lease,  he  is  not  a  tenant  from  year  to  year,  but  a 
tenant  strictly  at  will  ( p)  :  it  is  the  same  if  he  be  admitted 
tenant  pending  a  treaty  for  purchase,  which  is  afterwards 
broken  off  ((/).^ 

Entry  under  void  lease.  —  If  a  man  enter  under  a 
void  lease,  he  is  not  a  disseisor,  but  a  *  tenant  at  [*228] 
will  (r),  under  the  terms  of  the  lease  in  all  other 
respects  except  the  duration  of  time  (s)  :  and  when  he  pays 
or  agrees  to  pay  any  of  the  rent  therein  expressed  to  be 
reserved  he  becomes  a  tenant  from  year  to  year  upon  the 
terms  of  the  void  lease,  so  far  as  tliey  are  applicable  to  and 
not  inconsistent  with  a  yearly  tenancy  (s).  A  minister  of  a 
dissenting  congregation,  placed  in  possession  of  the  chapel 
and  dwelling-house  by  certain  persons  in  whom  the  fee  was 
vested,  in  trust  to  permit  and  suffer  the  chapel  to  be  used 
for  the  purpose  of  religious  worship,  is  a  mere  tenant  at  will 
to  those  persons  ;  and  his  interest  is  determinable  by  a  de- 
mand of  possession,  without  any  previous  notice  to  quit ;  he 
is  not  entitled  as  of  right,  before  the  determination  of  his 
tenancy,  to  have  a  reasonable  time  allowed  him  for  the  re- 
moval of  his  furniture  (^).  Where  a  tenant  at  will  let  into 
possession  a  person  whom  the  landlord  had  refused  to  take 
as  tenant  unless  he  found  security,  and  who  remained  in 
possession  two  years,  continuing  to  endeavour  to  find  secu- 
rities, but  without  success  ;  it  was  held,  that  he   was  not 


(o)  Doe  d.  Bastow  v.  Cox,  11  Q.  B.  v.  Herbert,  4  T.  R.  080;   De  Medina 

122.  V.  Poison,  Holt  N.  P.  C.  47. 

(p)  Doe  d.  Hollingsworth  v.  Sten-  (5)  Doe  v.  Bell,  5  T.  R.  471;  ante, 

nett,  2  Esp.    717  ;    Sinipkin   v.   Ash-  221. 
hurst,  1  C,  M.  &  R.  261.  (t)  Doe  d.  Jones  r.  Jones,  10  B.  & 

(7)  Peacock  v.  Peacock,  16  Ves.  57  ;  C.  718;  Doe  d.  Nicholl  v.  M'Kaeg,  Id. 

Doe  d.  Stanway  v.  Rock,  1  Car.  &  M.  721 ;    Revett    ?•.    Brown,    5   Bing.    7 ; 

549  ;  4  M.  &  G.  30 ;  Ball  v.  Cullimore,  Perry   v.   Shipway,    1    Giff.    1 ;    Cole 

2  C,  M.  &  R.  120.     And  see  237,  post.  Eject.  451,  604 ;  23  &  24  Vict.  c.  136, 

(r)  Denn  d.  Warren  v.  Fearnside,  s.  14. 
1  Wils.  176;    Goodtitle  d.  Galloway 


^  Entry  tinder  an  agreement  for  a  lease  does  not  necessarihj  (even  in 
Massachusetts)  create  a  tenancy  at  will.     Lyon  v.  Cunningham,  136  Mass.  532. 

369 


*229      TENANCIES   FOR   LESS    THAN    YEARS,   ETC.     [Ch.  VI.  S.  4. 

even  tenant  at  will  (w).  Slight  evidence  has  been  held 
sufficient  to  make  a  tenant  on  sufferance  a  tenant  at  will  (2-). 
An  admission  of  half  a  year's  rent  being  in  arrear  is  some 
evidence  of  a  tenancy  at  will  (?/).  Actual  payment  of  rent 
is  not  always  necessary  to  create  such  a  tenancy,  so  as  to 
authorize  a  distress  (2),  Where  a  term  of  years  is  created 
by  way  of  use,  and  hmited  to  a  trustee,  the  owner  of  the 
freehold  who  holds  subject  to  such  term  is  a  quasi  tenant  at 
will  to  his  own  trustee  (a). 

Determination  of  tenancy  at  will.  —  An  estate  at  will  may 
be  determined  by  a  demand  of  possession,  or  by  the  express 
declaration  of  either  of  the  parties  (6),  or  by  implication  of 
law:  of  the  latter  description  will  be  the  death  of  either 
party,  which  in  general  determines  the  will  (c)  —  acts  of 
ownership  exercised  by  the  landlord  (t?)  —  his  alienation  of 
the  reversion  and  notice  thereof  (e)  —  Avaste  committed  by 

the  tenant  (/)  — his  demising  or  leasing  or  assigning 
[*229]  the  premises  over  (^)  —  or,  in  short,  doing  any  *  act 

which  is  inconsistent  with  an  estate  at  will  (A).  An 
entry  by  the  landlord  on  the  land  without  the  tenant's 
consent,  and  cutting  and  carrying  away  stone  therefrom, 
amounts  to  a  determination  of  the  will  (O-     It  is  requisite 

(h)  Doe  d.  ITeniing  v.  Brett,  Hurl.  (p)   Co.  Lit.  55  b ;  Disdale  v.  Isles, 

&  Walm.  ;].  2  Lev.  88;  1  Vent.  247  ;  Hall  v.  Culli- 

(.r)   Turner  v.  Doe  d.  Bennett  (in  more,  2  C,  M.  &  R.  120;  Doe  </.  Goody 

error),  9  M.  &  W.  G43.  v.  Carter,  i)  Q.  B.  80;} ;  Doe  d.  Davies 

(//)  Cox  V.  Bent,  5  Bing.  185.  i'.  Thomas,  0  Kxch.  854,  857. 

iz)  Anderson  v.  Midland  R.  Co.,  3  (/)   Lit.  s.  71 ;  Co.  Lit.  55  b  ;  Smhh 

E.  &  E.  (514 ;  30  L.  J.,  Q.  B.  94 ;  Cox  L.  &  T.  20,  268  (2nd  ed.). 
r.  Bent,  .s«/>?Y(.  (7)  Cole  Ejec.  449,  453;    Binborn 

(n)  Sup.  V.  &  P.   1129  (14th  ed.);  v.  Souster,  8    Excb.  703;    Melling  v. 

Doe   d.  Jacobs  r.   I'hilli])s,  10  Q.  B.  Leake,  10  C  B.  (i52. 
130.  (/()  Cruise's  Dig.  tit.  ix.  s.  17;  Co. 

(I>)   Cole   Ejec.  58,  452,  453;    Doe  Lit.    57    a,    55   b,    n.    15;    Hinohman 

f/.  Bastovv  r.  Cox,  11  Q.  B.  122.  r.  Isles,  1    Ventr.   247;    Countess    of 

(c)  Doe  d.  Stanway  r.  Rock,  1  Car.  Shrewsbury's  case,  5  Rep.  13  b  ;  Hirch 
&  M.  549;  4  M.  &  C.  30;  Cockerell  v.  Wright,  1  T.  R.  382;  Pollen  r. 
»'.  Owerell,  Holt,  417;  James  c  Dean,  Brewer,  7  C.  B.,  N.  S.  371;  AVallis 
11  Ves.  301;  Att.-Gen.  r.  Ld.  Foley,  -•.  Delmar,  29  L.  J.,  Ex.  270;  Smith 
2  Dick.  303.  L.  &  T.  19  (2nd  ed.). 

(d)  Co.  Lit.  55  b,  57  b,  L'l5  1);  cited  (/)  Doe  d.  Bennett  v.  Turner,  7  M. 
9    M.    &   W.    040;    Doe    ,1.    Moore    r.  &  W.  220 ;  9  Id.  043. 

Lawder,  1    Stark.  R.  308;    Smith  L. 
&T.  17  (2nd  ed.). 

370 


Ch.  VI.  S.  4.]  TENANCY   AT   WILL.  *229 

that  the  landlord  should  give  the  tenant  notice  that  he  de- 
termines the  tenancy  if  the  act  relied  on  be  done  off  the 
premises  (/c).  Where  the  act  is  done  on  the  land,  it  is  pre- 
sumed that  the  tenant  is  there  and  knows  of  it  (Z).  A 
demand  of  possession  made  on  the  premises  from  the  wife 
of  a  sub-lessee  at  will  is  suHicient  (w).  So  the  lessor  by 
making  a  lease  for  years  to  commence  presently  determines 
the  tenancy  at  will,  although  there  be  a  stipulation  that  the 
new  lessee  shall  not  enter  until  after  the  day  for  payment  of 
the  rent  by  the  tenant  at  will  (?i).  The  Avill  is  also  deter- 
mined by  an  agreement  by  the  lessor  for  the  sale  of  the  free- 
hold to  the  tenant  at  will  (o).  The  words  "Unless  you  pay 
what  you  owe  me,  I  shall  take  immediate  measures  to  re- 
cover possession  of  the  property,"  addressed  to  the  tenant 
by  the  party  entitled  to  the  fee,  have  been  held  a  sufficient 
determination  of  the  will,  and  equivalent  to  a  demand  of 
possession,  so  as  to  maintain  ejectment  (jo).  A.,  having 
been  in  possession  of  a  house  and  lands  adjoining  as  tenant 
at  will  to  the  lord  of  a  manor,  was  told  by  a  subsequent 
lord  that  he  must  leave.  On  his  refusal  to  do  so,  a  writ  of 
ejectment  was  served  upon  him  ;  it  was  then  verbally  ar- 
ranged that  A.  should  give  up  part  of  the  land,  and  retain 
the  house  and  remaining  land  during  the  life  of  himself  and 
wife.  It  was  held  that  these  acts  amounted  to  a  determina- 
tion of  the  tenancy  at  will,  and  as  a  new  tenancy  at  will  was 
thereby  created  as  to  part,  the  Statute  of  Limitations,  3  &  4 
Will.  4,  c.  27,  ss.  7,  10,  began  to  run  from  that  time,  and  not 
from  the  date  of  the  original  tenancy  {q^.  A  sub-demise  or 
assignment  by  a  tenant  without  notice  thereof  to  his  land- 
lord does  not  determine  the  will,  so  as  to  prejudice  the  land- 
lord (/•). 

(k)  Co.  Lit.  55  b.  (o)  Daniels  v.  Davison,  16  Ves.  249. 

(0  Cole    Ejec.    452;    Pinhorn    v.  (;*)  Doe  f/.  Price  i-.  8  Bing.  .356. 

Souster,  8  Exch.    763;    Carpenter  v.  (7)  Locke  v.  Matthews,  13  C.  B., 

Collins,  Yelv.  73;  Ball  i'.  CuUimore,  N.  S.  753;  9  Jur.,  N.  S.  874. 

2  C,  M.  &  R.  120.  (r)  Pinhorn   v.    Souster,   8    Exch. 

(?n)  Roe  d.  Blair  v.  Street,  2  A.  &  763.     Mclling  i'.  Leake,  16  C.  B.652; 

E.  329 ;  4  N.  &  M.  42.  Cole  Ejec.  453. 

(n)  Disdale  v.  Isles,  2  Lev.  88;  1 
Ld.  Raym.  224. 

371 


*230       TENANCIES   FOR   LESS   THAN   YEARS,   ETC.    [Ch.  VI.  S.  4. 

Bankruptcy.  —  Becoming  an  insolvent  debtor  has  been 
held  to  be  a  determination  of  the  will  (s),  and  becoming 
bankrupt  would  seem  to  have  the  same  effect. 

Joint  tenancy.  —  If  two  joint  tenants  create  a  tenancy  at 
will  at  a  certain  rent,  and  one  cUes,  the  survivor  takes 
[*230]  the  whole  premises  and  may  maintain  an  *  action  for 
the  entire  rent  against  the  lessee  continuing  in  pos- 
session (^).  So  where  a  lease  is  made  to  three  joint  tenants, 
rendering  rent,  the  death  of  one  does  not  determine  the 
tenancy;  but  the  survivors  are  liable  to  pay  the  whole 
rent  (0- 

Marriage.  —  A  lease  at  will  by  a  feme  sole  did  not,  even 
before  the  Married  Women's  Property  Act,  determine  by 
her  marriage,  unless  the  husband  did  some  express  act  to 
determine  the  tenancy  (^  ;  nor  did  the  marriage  of  a  feme 
sole  determine  a  tenancy  at  will  made  to  her  (f)  ;  and  the 
effect  of  the  act  is  to  give  the  married  woman  the  same 
estate  as  if  she  were  still  a  feme  sole. 

Rights  of  the  parties  on  the  determination.  —  The  sudden 
determination  of  the  will  of  one  party  will  not  operate  to 
the  material  injury  of  the  other:  therefore  if  a  tenant  at 
will  sow  his  land,  and  the  landlord  determine  the  tenancy 
])efore  the  corn  be  ripe,  the  tenant  notwithstanding  has  free 
liberty  to  enter  upon  the  land  to  cut  and  carry  his  crop  (w)  ; 
and,  on  a  like  principle  of  justice,  the  tenant  may,  in  all 
cases,  have  reasonable  time  allowed  him  to  remove  his  goods 
after  the  determination  of  the  estate  by  the  act  of  the  land- 
lord (a:).  AVhere  there  is  a  tenancy  at  will,  rent  being  paid 
quarterly,  the  lessee,  after  a  quarter  of  a  year  is  commenced, 
may  determine  his  will,  but  then  he  must  pay  that  quarter's 
rent;  and  if  the  lessor  determine  liis  will  attor  the  com- 
mencement of  a  quarter,  he  loses  liis  rent  for  tliat  quarter; 
and  so  it  is  if  the  rent  be  payable  half-yearly  (vy). 

(s)  Doe  r/.  Davics  ?).  Tluniiiis,  0  Ex.  (r)   Lit.  s.  09  ;   Noy's  Max.  c.    11; 

984.  Doc  d.  Nicholl  v.  M'Kaeg,  10  B.  &  C. 

(/)   Honstead's  case,  5  Co.  R.  10  b.  721. 

00    liit.  s.  08;  Co.  Lit.  f).'')  h;  Oland  (//)   Carpcntor  c  CoIlin.<!,  Yelv.  73  ; 

r.  Rurdwick,  Cro.  Eiiz.  400  ;  BuhviT  r.  I^ayton  r.  Field,  :>  Sali<.  222;   Lcigli- 

BiilwiT.  2  B.  &  A.  470,  471.     And  sec  tone  Tiiood,  2  Salk.  41:! ;  1  Ld.Kaym. 

Cliap.  XX.,  7)o.sr  707;  I'arkcr  v.  Harris,  4  Mod.  70;  1 

372 


Cii.  VI.  S.  5]  TENANCY   ON   SUFFERANCE.  *231 

Sect.  5.  —  Tenancy  on  Sufferance. 

How  constituted. —  A  tenant  on  sufferance  is  one  who  en- 
tered by  a  lawful  demise  or  title,  and  after  that  has  ceased 
wrongfully  continues  in  possession  without  the  assent  or  dis- 
sent of  the  person  next  entitled  (z)  ;  as  where  a  tenant  per 
autre  vie  continues  in  possession  after  the  death  of  the  cestui 
que  vie  (a),  or  where  any  one  continues  in  possession  with- 
out agreement  after  a  particular  estate  is  ended  (J).^  If  a 
tenant  for  years  surrender  and  then  hold  over,  he 
will  be  either  tenant  on  *  sufferance  or  disseisor,  at  [*231] 

Salk.   262;   Title   v.   Grovett,  2   Ld.  (6)  Com.    Dig.   tit.   Estates  (H.)  ; 

Raym.   1008 ;   Co.  Lit.  55  a,  b,  note  Doe  d.  Martin  v.  Watts,  7  T.  R.  83 ; 

374 ;  Kighly  v.  Bulkly,  1  Sid.  338.  Roe  d.  Jordan  v.  Ward,  1  H.  Blac, 

(z)  Co.  Lit.  57  b,  270  b ;  1  Steph.  9(3 ;  Roe  d.  Brune  v.  Prideaux,  10  East, 

Com.  273.  187  ;  Doe  d.  Collins  v.  Weller,  7  T.  R. 

(a)  Co.  Lit.  57  b  ;   Allen  i-.  Hill,  487 ;  Doe  d.  Tucker  v.  Morse,  1  B.  & 

Cro.  Eliz.  238 ;  3  Leon.  153.  Ad.  305. 

1  Tenancy  at  sufferance.  —  One  who  liolds  over  after  a  term  for  years, 
or  lesser  period,  without  the  consent  of  the  landlord  is  (by  all  authorities),  a 
tenant  at  sufferance.  Hauxhurst  v.  Lobree,  38  Cal.  563;  Ferine  v.  Teague, 
QQ  Id.  446;  Jackson  v.  Farkhurst,  5  Johns.  (N.  Y.)  128;  Jackson  v.  M'Leod, 
12  Id.  182;  Wilde  v.  Cantillon,  1  Johns.  Cas.  (N.  Y.)  123;  Den  v.  Adams, 
12  N.  J.  L.  99;  Condon  v.  Barr,  47  N.  J.  L.  113;  Leighton  v.  Van  Wart,  1 
Pugs.  &  Bur.  (N.  B.)  489,  491  {per  Allen,  C.  J.);  Cairo,  &c.,  R.  R.  Co.  v. 
Wiggins  Ferry  Co.,  82  111.  230. 

In  England,  New  Brunswick,  Maine,  and  Massachusetts,  one  holding  over 
without  agreeing  expressly  or  impliedly  to  continue,  the  tenancy  is  a  tenant 
at  sufferance.  Leighton  v.  Van  Wart,  1  Pugs.  &  Bur.  489 ;  Bowman  v. 
Avery,  3  Kerr  (N.  B.)  206,210;  Delano  v.  Montague,  4  Cush.  (Mass.)  42; 
Bunton  r.  Richardson,  10  Allen  (Mass.)  260  (per  Bigelow,  C.  J.);  Lithgow 
V.  Moody,  35  Me.  214;  Chesley  v.  Welch,  37  Me.  106.  And  the  landlord  (at 
common  law)  cannot  recover  for  use  and  occupation.  See  above  cases,  and, 
also.  Flood  V.  Flood,  1  Allen  (Mass.)  217,  218  (per  Chapman,  J.)  ;  Merrill 
V.  Bullock,  105  Mass.  486,  490  (per  Gray,  J.);  though  he  may  by  statute  in 
Massachusetts  Pub.  Sts.  chap.  121,  sec.  3;  Bunton  r.  Richardson,  10  Allen,  200. 

In  New  York  and  some  other  states,  he  is  a  tenant  or  trespasser  at 
election  of  landlord.  Wolffe  r.  Wolffe,  69  Ala.  549,  551,  552  (per  Somer- 
ville,  J.);  Pickett  r.  Bartlett,  13  Daly  (N.  Y.)  230;  Smith  v.  Allt,  7  Id.  492, 
493;  Schuyler  v.  Smith,  51  N.  Y.  309;  Critchfield  v.  Remaley,  21  Neb.  178; 
Conway  v.  Starkweather,  1  Denio  (N.  Y.)  113;  Clinton  Wire  Co.  v.  Gardner, 
99  111.  151 ;  Noel  v.  McCrory,  7  Coldw.  (Tenn.)  623. 

A  tenancy  at  will  will  be  changed  into  a  tenancy  at  sufferance  by  the  death 
of  the  lessor,  Reed  v.  Reed,  48  Me.  388 ;  or  alienation  of  the  estate,  Nelson 
V.  Cook,  12  Q.  B.  (Out.)  22  ;  Esty  v.  Baker,  50  Me.  325. 

373 


*2-31      TENANCIES   FOK   LESS   THAN    YEARS,   ETC.     [Cii.  VI.  S.  5. 

the  election  of  the  hmdlord  (c).  An  undertenant  who 
is  in  possession  at  the  determination  of  the  original  lease, 
and  is  suffered  by  the  reversioner  to  hold  over,  is  only 
a  tenant  on  sufferance  ((7).  Where  a  tenancy  at  will  is 
determined  by  the  landlord  exercising  acts  of  ownership, 
and  the  tenant  remains  in  possession,  he  becomes  tenant  on 
sufferance  only,  but  slight  evidence  would  be  sufficient  to 
show  a  new  creation  of  a  tenancy  at  will  (g),  or  he  may  by 
payment  of  rent  or  other  acknowledgment  of  tenancy  be- 
come tenant  from  year  to  year  (/'). 

Distinction  between  tenant  at  -will  and  on  sufferance.  —  There 
is  a  great  difference  between  a  tenant  at  will  and  a  tenant 
on  sufferance :  the  former  is  always  in  by  right ;  but  the 
latter  holds  over  by  wrong  after  the  expiration  of  a  lawful 
title  (^).  The  reversioner  who  suffers  this  is  considered  to 
be  guilty  of  some  laches  or  negligence,  as  is  generally  the 
case.  Against  the  crown  there  can  be  no  tenant  on  suffer- 
ance, for  the  crown  not  being  capable  of  committing  laches, 
such  person  will  be  an  intruder  (A).  Where  a  cottager 
occupied  a  piece  of  land  inclosed  from  the  waste  on  the  side 
of  a  turnpike  road  for  more  than  thirt}^  years,  without  pay- 
ing rent,  and  at  the  end  of  that  time  paid  sixpence  rent  on 
four  several  occasions  to  the  owners  of  the  adjoining  land : 
it  was  held,  that  this  was  conclusive  evidence  of  a  permis- 
sive occupation  only,  so  as  to  maintain  ejectment ;  and  that 
it  was  a  proper  question  for  the  jur}^  whetlier  there  had 
been  an  acknowledgment  of  the  tenancy  (Q. 

Empty  house.  —  Where  a  person  obtained  possession  of  a 
house  which  was  empty,  without  the  privity  of  the  landlord, 
intending  to  take  a  lease  of  it  from  him,  and  some  negotia- 

(c)  Pennington  v.  Morse,  Dyer,  62  Doe  d.  Clarke  i".  Smaridge,  6  Q.  B. 

a;  Winch,  82;  Kiglit  v.  T):irhy,  1  T.  957. 

R.    159 ;    Doe  d.  Tilt   v.    Stratton,   4  (7)  Co.   Lit.  57  b ;   cited    .3  C.  B. 

Binf;.  4(50.  220,  note  (h)  ;  Coje  Ejcc  45(5. 

{d)  Simpkins  ;;.  Aslihurst,  1  C,  M.  (/i)  Co.  Lit.  57  b  ;  Cole  Ejoc.  456. 

&  1{.  201.  (0  Doe  d.  Jackson  v.  Wilkinson,  3 

(e)  Doe  d.  Bennett  r.  Turner,  7  M.  B.  &  C,  41.'?;  and  see  Doe  d.  Thomp- 

&  W.  220 ;  9  Id.  043.  son  v.  Clark,  8  B.  &  C.  717  ;  Locke  v. 

(/)  Mann    v.    Lovejoy,  Ry.  &   M.  Matthews,  13  C.  B.,  N.  S.753;  9  Jur., 

3.55';    Right    V.  Darby,  1   T.  H.  159;  N.  S.  874. 
Doe  d.  Calvert  v.  Frowd,  4  Bing.  557  ; 

374 


Ch.  VI.  S.  6.]     MORTGAGOR  AND  MORTGAGEE.  *2-32 

tions  afterwards  took  place  between  them  upon  the  subject : 
it  was  held  that  the  relation  of  landlord  and  tenant  never 
subsisted,  but  that  if  there  was  a  tenanc}'"  of  any  sort  it  was 
on  sufferance  (/c).  An  instrument  in  these  terms,  "  I  hereby 
certify  that  I  remain  in  the  house,  No.  3,  Swinton  Street,  be- 
longing to  W.  G,,  on  sufferance  only,  and  agree  to  give  him 
possession  at  any  time  he  may  require,"  does  not  create  any 
tenancy,  nor  require  a  stamp  (Z). 

Ejectment.  —  A  landlord  may  maintain  ejectment  against 
his  tenant  on  sufferance  without  any  previous  demand  of 
possession  (w).  A  tenant  on  sufferance,  who  is  turned 
out  of  possession  by  his  landlord,  without  any 
*  demand  of  possession,  cannot  maintain  ejectment,  [*232] 
but  may  sometimes  maintain  trespass  (w).  It  would 
seem,  however,  that  the  action  should  be  for  assault  and 
battery  rather  than  for  trespass  to  the  land  (o). 

Demise  by  estoppel.  —  A  tenant  on  sufferance  has  no  de- 
misable estate,  but  he  may  create  a  tenancy  by  estoppel  (p). 


Sect.  6.  —  Mortgagor  and  Mortgagee. 

The  notion  of  a  mortgagor  being  in  some  cases  a  tenant  at 
will  seems  to  be  recognized  by  3  &  4  Will.  4,  c.  27,  s.  7, 
which  provides  that  no  mortgagor  shall  be  deemed  to  be  a 
tenant  at  will  to  his  mortgagee  within  the  meaning  of  that 
clause ;  ^  but  it  seems  more  correct  to  say  that  the  mortgagor 
is  a  tenant  on  sufferance  only  (^).  It  is  clear,  too,  that  the 
mortgagor  cannot  create  a  subtenancy ;  that  his  subtenants 
would  be  tortfeasors,  and  could  not  sue  the  mortgagee  in 
trespass  (jq). 

(k)  Doe   d.  Knight   v.   Quigley,  2  749 ;  Doe   d.  Harrison  v.  Murrell,  8 

Camp.  505.  C.  &  P.  184. 

(/)  Barry  r.Goodman,  2  M.  &  W.  768.  (o)  Cole  Ejec.  456. 

(m)  Doe    d.    Leeson    v.    Sayer,   3  (/>)  Sliopland  v.  Ryoler,  Cro.  Jac. 

Camp.  8;  Doe  d.  Bennett  r.  Turner,  55,99;  Thunder  rf.  Weaver  y.  Belcher, 

7  M.  &  W.  226 ;   Doe  d.  Heming  v.  3  East,  449. 

Brett,  Hurl.  &  W.  3;  Cole  Ejec.  457.  (r/)  Gibbs  v.  Cruikshank,  L.  R.,  8 

(n)  Doe  d.  Crisp  v.  Barber,  2  T.  R.  C.  P.  454 ;  42  L.  J.,  C.  P.  273. 

1  Attornment  clauses. — Mortgages  are  sometimes  made  with  attorn- 
ment clauses.  In  re  Willis,  Ex  parte.  Kennedy,  21  Q.  B.  D.  384;  Southport  & 
W.  Lancashire  Banking  Co.  v.  Thompson,  37  Ch.  1).  64. 

375 


*233      TENANCIES   FOR   LESS   THAN    YEARS,    ETC.     [Cii.  VI.  S.  6. 

Mortgagor  may  sue  for  rent.  —  By  the  Judicature  Act,  1873, 
s.  25,  subs.  (5),  '"'■  a  mortgagor  entitled  to  possession  may, 
unless  notice  of  an  intention  to  take  possession  shall  have 
been  given  by  the  mortgagee,  or  unless  the  cause  of  action 
arise  upon  some  joint  contract  (9^),  sue  for  possession  or 
rent  in  his  own  name  only." 

"  Attornment  clause  "  in  mortgage  deed.  —  In  order  to  obtain 
for  the  mortgagee  the  benefit  of  being  able  to  recover  his 
interest  as  rent  by  the  preferential  remedy  of  distress,  it 
became  common  to  insert  in  mortgage  deeds  an  "  attornment 
clause,"  by  which  the  mortgagor  "  attorns,"  or  agrees  to 
become  tenant  to,  the  mortgagee  at  a  rent  representing  the 
interest ;  and  this  fictitious  tenancy  has  given  rise  to  much 
litigation. 

Where  the  mortgagor  agreed  to  become  tenant  to  the 
mortgagee  at  his  will  and  pleasure,  at  the  rate  of  2bl.  per 
annum,  payable  quarterly,  and  occupied  for  two  3^ears,  pay- 
ing the  rent,  it  was  held  to  be  a  tenancy  at  will,  and  not 
from  year  to  year  (r).  So  where  it  was  agreed  that  the 
mortgagor  should  hold  the  premises  as  tenant  at  will  to  the 
mortgagee  at  a  specified  rent,  for  which  it  should  be  lawful 
for  the  mortgagee  to  distrain,  it  was  held  that  the  clause 
creating  a  tenancy  was  operative,  as  not  being  inconsistent 
with  the  main  object  of  the  instrument,  and  that  a  tenancy 
at  will  was  thereby  created  (s).  But  where  the  attornment 
clause  expressly  provides  for  a  tenancy  from  year  to  year, 
a  tenancy  at  wdll  is  not  created  by  words  also  ex- 
[*233]  pressly  providing  that  the  *  mortgagee  may  re-enter 
and  determine  the  tenancy  at  any  time  without  notice, 
so  that  tlie  mortgagee  in  such  a  case  may  distrain  under  the 
42nd  section  of  tlie  Bankruptcy  Act,  1883  (^).  Where  the 
mortgagor  by  the  mortgage  deed    attorned   and   agreed  to 

(77)  See  the  section  at  length,  ante,  K>  Cli.  D.  274  ;  50  L.  J.,  Ch.  318 ;  44 

50.  L.  T.  74  ;  21)  W.  R.  128 ;  C.  A.     As  to 

()•)  Doe  d.  Barstow  v.  Cox,  11  Q.  wliat  amount  may  be  distrained   for 

B.  122;    Doe    d.    Dixie    v.  Davies,  7  under  an  attornment  chiuse,  see  Har- 

Exch.  80.  rison,  K.r  parte,  Betts,  In   re,  L.  R., 

(.s)  Pinliorn  v.  Souster,  8  Kxch.  70.3.  18  Ch.  D.  127  ;  50  L.  J.,  Ch.  832 ;  45 

(0  Queen's   Benefit   Huiidinfj;  Soei-  L.  T.  290;  30  W.  R.  38  C.  A. 
ety,  Ex  parte,  Trelfall,   hi  re,  L.  R., 

376 


Ch.  VI.  S.  0.]  MORTGAGOll    AND   MORTGAGEE.        '  *233 

become  tenant  from  year  to  year  to  tlie  mortgagee  at  a  fixed 
rent,  payable  half-yearly,  to  enable  him  to  distrain  for  his 
interest  when  in  arrear,  and  with  the  usual  power  of  entry 
after  default ;  it  was  hold,  that  such  attornment  did  not 
create  a  tenancy  from  year  to  year  ^vit^l  all  its  incidents^  and 
that  the  mortgagee  might,  after  default,  maintain  ejectment 
against  the  mortgagor  without  giving  him  six  months'  notice 
to  quit  (u).  The  mere  fact  that  the  mortgagee  has  received 
interest  down  to  a  time  later  than  the  day  of  demise  in  eject- 
ment, is  not  a  recognition  of  tlie  mortgagor  as  his  tenant  (a)  ; 
nor  is  the  distraining  after  such  day  of  demise,  for  interest 
due  before  the  day,  under  a  power  to  do  so  as  for  rent  re- 
served on  a  lease,  there  being  no  clause  that  the  mortgagor 
shall  keep  possession  so  long  as  he  pays  interest  (?/).  Where 
a  mortgage  contained  a  covenant  that  the  mortgagor,  during 
his  occupation,  should  pay  a  rent  rather  larger  than  the 
interest,  half-yearly,  and  that  the  mortgagee  should  have  the 
usual  remedies  of  landlords  of  distress  and  sale ;  provided 
that  this  reservation  should  not  prejudice  the  mortgagee's 
right  to  enter  and  evict  the  mortgagor;  it  was  held  that, 
after  distraining  for  one  half-year's  rent,  the  mortgagee 
miglit  eject  the  mortgagor,  without  notice  to  quit,  after  a 
subsequent  default  (s).  So  where  a  mortgage  deed  con- 
tained a  clause  that  for  the  better  securing  the  principal  and 
interest,  and  in  contemplation  of  part  discharge  thereof,  the 
mortgagor  attorned  tenant  to  the  mortgagee,  at  a  quarterly 
rent,  to  be  recoverable  by  distress  and  sale,  or  action,  with  a 
power  of  immediate  entry  and  sale  for  the  mortgagee,  upon 
default  of  payment  of  the  mortgage  money  ;  it  was  held  there 
was  no  need  of  a  notice  to  quit  after  default  (a). 

Notice  of  intention    to   treat   mortgagor   as   tenant.  —  But  in 
Clowes  V.  Hughes,  where  the  mortgage  deed  provided  that 

{u)  Metropolitan   Counties   Assur-  Assurance  Co.  v.  Brown,  4  H.  &  N. 

ance  Co.  v.  Brown,  4  H.  &  N.  428.  428. 

(x)  Doe  d.  Rogers  i'.  Cadwallader,  (c)  Doe  d.  Garrod  v.  Olley,  12  A. 

2  B.  &  Ad.  47o;  but  see  Doerf.  Whit-  &    E.    481;     Metropolitan    Counties 

aker  v.  Hales,  7  Ring.  322.  Assurance  Co.  i'.  Brown,  supra. 

(y)  Doe  d.  Wilkinson   r.  Goodier,  (a)  Doe  d.  Snell  v.  Tom,  4  Q.  B. 

lOQ.  B.  957;  Metropolitan  Counties  015;  Metropolitan  Counties  Assur- 
ance Co.  V.  Brown,  supra. 

377 


*234     TENANCIES    FOR    LESS   THAN    YEAKS,    ETC.      [Cu.  VI.  S.  6. 

the  mortgagor,  in  event  of  default,  should  immediately,  or 
at  any  time  after  such  default,  hold  the  mortgaged  premises 
as  yearly  tenant  to  the  mortgagees  from  the  date  of  the 
deed,  and  that  they  should  have  the  same  remedies  for 
recovering  the  rent  as  if  it  had  been  reserved  upon  a  com- 
mon lease,  it  was  held  that  notice  of  an  intention  to 
[*234]  treat  the  mortgagor  as  tenant  was  a  *  condition  pre- 
cedent to  distress  (6).  A  mortgage  deed  executed 
by  the  mortgagor  only  contained  a  clause  whereby,  "  for  the 
more  effectual  recovery  of  the  interest,  the  mortgagor  did 
attorn  and  become  tenant  to  the  mortgagee  of  the  premises 
at  the  yearly  rent  of  401.  to  be  paid  half-yearly,  so  long  as 
the  principal  sum  remained  secured ; "  the  mortgagor  con- 
tinued in  possession,  and  made  several  of  these  half-yearly 
payments ;  it  was  held,  that  the  subsequent  occupation,  con- 
nected with  the  covenant,  created  the  relation  of  landlord 
and  tenant,  and  that  the  mortgagee  might  distrain  for  a 
half-yearly  payment  in  arrear  (c). 

Attornment  to  second  mortgagee.  —  A  mortgagor  may  attorn 
tenant  to  two  mortgagees  in  respect  of  the  same  property. 
And  if  the  amount  of  the  rents  fixed  by  the  two  attornment 
clauses  is  fair,  so  as  not  to  raise  a  fraud  upon  the  law  of 
bankruptcy,  valid  distresses  can  be  levied  by  both  mortgagees 
after  the  commencement  of  the  bankruptcy  of  the  mortgagor. 
So  it  was  held  by  the  Court  of  Appeal  in  Punnett,  ex  parte, 
Kitchin,  in  re  (d^. 

Fraud  on  bankruptcy  law.  —  A  rent  may  be  SO  excessive  as 
to  lead  the  court  to  the  conclusion  that  the  attornment  clause 
was  a  mere  device  to  obtain  an  additional  security,  in  which 
case  a  distress  will  be  invalid  as  against  the  trustees  in  bank- 
ruptcy as  a  fraud  upon  the  bankruptcy  law  (e). 

Effect  of  Bills  of  Sale  Act,  1878,  on   attornment   clauses.  —  It 

(6)  Clowes  I'.  Hufrhcs,  L.  R.,  5  Ex.  re,  L.  R.,  16  Ch.  D.  226;  50  L.  J.,  Ch. 

160;  .30  L.  J.,  Ex.  02;  22  L.  T.  103;  212;  44  L.  T.  22(5;  29  W.  R.  120. 

18  W.  R.  450.  {)■)  .Jivckson,    Ex   parte,  Bowes,  In 

(c)  West  1-.  Fritche,  ?.  Exch.  216;  re,  L.  R.,  14  Ch.  D.  725;  4.3  L.  T. 
Morton  v.  Woods,  L.  R.,  :j  Q.  R.  658;  272;  20  W.  R.  253  C.  A.  Sec  also 
37  L.  J.,  C).  B.  242;  aff.  L.  R.,  4  Q.  B.  Williams,  Ex  parte,  L.  R.,  7  Ch.  1). 
293.  i:!H;  Stockton  Iron  Co.,  In  re,   L.  R., 

(d)  Punnett,  Ex  parte,  Kitchin,  In  10  Ch.  1).  335. 


Ch.  VI.  S.  G.]      MOKTGAGOK  AND  MORTGAGEE.        *235 

is  enacted  by  s.  6  of  the  Bills  of  Sale  Act,  1878,  that  "every 
attornment,  instrument  or  agreement,  not  being  a  mining 
lease,"  whereby  a  power  of  distress  is  given  and  rent  reserved 
as  a  mode  of  providing  for  interest  on  a  debt,  "shall  be 
deemed  to  be  a  bill  of  sale  "  of  the  chattels  which  may  be 
seized  under  the  distress  ;  but  a  proviso  is  added  that  nothing 
in  the  section  shall  extend  to  any  mortgage  of  an  estate 
"  which  the  mortgagee,  being  in  possession,  shall  have 
demised  to  the  mortgagor  as  his  tenant  at  a  fair  and  reason- 
able rent." 

Bills  of  Sale  Act,  1882.  —  This  section  appears  to  incorporate 
the  effect  of  the  decisions,  and  to  exempt  reasonable  attorn- 
ment clauses  from  the  operation  of  the  Bills  of  Sale  Acts ; 
but  by  the  Bills  of  Sale  Act,  1882,  s.  8,  unregistered  bills  of 
sale,  executed  after  the  commencement  of  that  act,  are  void 
not  only  as  under  the  acts  of  1854  and  1878,  as  against  exe- 
cution creditors  and  trustees  in  bankruptcy,  but  as  against 
the  grantor,  and  attornment  clauses  must  always  be  attended 
with  considerable  risk  to  mortgagees. 

Construction  of  mortgage  deeds.  —  A  mortgage  indenture, 
after  a  power  of  sale  on  non-payment  of  the  mortgage-money, 
contained  a  covenant  by  the  mortgagee  that  there 
*  should  be  no  sale  or  notice  of  sale,  nor  means  taken  [*235] 
for  obtaining  possession  until  a  year  after  notice 
thereof  to  the  mortgagor;  the  mortgagee  also  covenanted 
for  quiet  enjoyment  by  the  mortgagor  or  his  tenant  at  will, 
on  payment  of  a  yearly  rent ;  it  was  held,  that  under  this 
deed  the  mortgagor  was  tenant  at  will  only  to  the  mortgagee, 
and  that  no  tenancy  from  year  to  year  was  thereby  cre- 
ated (/).  An  estate  was  mortgaged  in  fee,  with  the  usual 
proviso  for  redemption,  on  payment  in  June,  1834,  and  it 
was  also  provided  that  the  mortgagee  should  not  call  in  the 
principal  money  until  December,  1840,  if  the  interest  were 
regularly  paid ;  and  there  was  a  covenant  that  the  mort- 
gagor should  hold,  occupy  and  enjoy  the  estate  until  default 
in  payment  of  the  principal  or  interest  as  aforesaid ;  it  was 
held  that  this   operated  as  a  lease  to  the  mortgagor  until 

(/)  Doe  d.  Dixie  v.  Davies,  7  Exch.  89. 
379 


*235      TENANCIES    FOR   LESS   THAN   YEARS,    ETC.     [Ch.  VI.  S.  6. 

December,  1840  (_^).  A  tenant  for  years  of  a  house  demised 
it  by  \xiij  of  mortgage  to  hold  from  thenceforth,  subject  to 
the  proviso  after  named ;  and  he  further  sold  and  transferred 
the  fixtures  and  some  chattels  to  the  mortgagee,  also  subject 
to  the  proviso  after  named;  the  deed  contained  a  proviso 
for  reconveyance  on  payment  of  the  money  on  a  certain  day, 
and  also  a  proviso  that,  on  non-payment,  the  mortgagee 
might  enter  upon  and  receive  the  rents,  and  sell  the  prem- 
ises, and  also  the  fixtures  and  chattels  ;  it  was  held  that  the 
mortgagee's  right  to  take  possession  did  not  attach  until  the 
day  on  which  the  money  was  to  be  paid,  and  that  therefore 
he  could  not  maintain  an  action  of  trespass  previously  (A). 
But  where  a  person  demised  premises,  to  hold  from  thence- 
forth for  a  term,  provided  that  if  the  lessor  paid  a  certain 
sum  and  interest  a  year  after,  then  that  the  demise  should  be 
void ;  provided  also,  that  upon  default  the  lessee  might  sell ; 
and  there  was  a  covenant  by  the  lessor  for  paj-ment  of  princi- 
pal and  interest,  and  that  at  any  time  after  default  it  should 
be  lawful  for  the  lessee  to  enter,  and  from  thenceforth  to 
hold  the  premises  and  take  the  rents ;  it  was  held,  that 
the  lessee  might  take  possession  immediately  and  before 
default  («). 

Summary  judgment.  —  Where  the  attornment  clause  pro- 
vided for  a  tenancy  at  will,  and  the  mortgagee,  having  given 
notice  to  quit,  sued  for  the  recovery  of  the  land,  it  was  held 
that  the  action  was  one  "  for  the  recovery  of  land  by  a  land- 
lord against  a  tenant  whose  term  had  expired  "  within  Ord. 
III.,  Rule  6,  case  F  of  the  Rules  of  the  Supreme  Court,  1883, 
so  that  the  plaintiff  might  specially  endorse  his  writ  and 
apply  for  final  judgment  under  Order  XIV.  (/c). 


(.9)   Wilkinson  v.  Hall,  .3  Binp.  N.  133 ;  but  see  Doe  d.  Tarsley  v.  Day, 

C.  508  ;  Doe  d.  Lyster  i;.  Goldwin,  2  2  Q.  B.  147. 

Q.  B.  143  ;  Doe  d.  Hoylance  i'.  Lif,'iit-  ((')  Rogers  i'.  Grazebrook,  8  Q.  B. 

foot,  8  M.  &  W.  653;  Doe  d.  Parsley  81)5. 
V.  Day,  2  Q.  B.  147.  (^O  Daubuz  v.   Lavington,   L.   R. 

(A)  Wheeler  v.  Montefiore,  2  Q.  B.  13  Q.  B.  D.  347  ;  53  L.  J.,  Q.  B.  283 

51  L.  T.  20U ;  32  W.  R.  772. 

380 


Ch.  VI.  S.  7.]  MASTER   AND   SERVANT.  *236 

*  Sect.  7.  —  Master  and  Servant.  [*236] 

Servant  occupying  separate  house.  —  An  agent  01'  servant 
who  is  allowed  to  occupy  premises  belonging  to  his  principal 
for  the  more  convenient  performance  of  his  duties,  acquires 
no  estate  therein,  although  he  be  also  allowed  to  use  the 
premises  for  carrying  on  therein  an  independent  business 
of  his  own  (^),  nor  does  any  tenancy  arise  in  the  common 
case  of  a  servant  occupying  a  cottage  rent-free,  with  less 
wages  on  that  account  (jn^}  Where  a  person  was  employed 
by  the  Highgate  Archway  Company  to  collect  toll  for  them, 
and  lived  in  the  toll-house,  one  shilling  per  week  being 
deducted  from  his  wages  by  way  of  rent;  and  the  company 
having  ceased  to  collect  toll  at  the  particular  spot,  he  was 
dismissed  from  their  employ,  and  received  a  notice  to  leave 
the  house,  which  he  promised  to  do :  it  was  held  that  these 
circumstances  did  not  constitute  him  a  tenant  of  the  com- 
pany (m).  Where  a  servant  occupies  premises  of  his  master, 
without  paying  rent,  as  part  remuneration  for  his  services, 
in  order  to  ascertain  whether  the  servant  is  a  "  substantial 
householder  "  within  the  43  Eliz.  c.  2,  s.  1,  so  as  to  be  eligi- 
ble to  the  office  of  overseer  of  the  poor,  the  question  is 
whether  the  occupation  is  subservient  and  necessary  to  the 
service  ;  if  it  is,  the  occupation  is  that  of  the  master ;  if  it  is 
not,  the  occupation  is  that  of  a  tenant,  and  the  servant  is  a 
"  householder  "  (o). 

(/)  White  V.  Bayley,  10  C.  B.,  N.  S.  6  M.  &  S.  136 ;  T?.  v.  Cheshunt,  1  B. 

227.  &  A.  473;  R.  r.  Snape,(5  A.&  E.  278; 

(m)  Bertie  v.  Beaumont,  16  East,  Allen  v.  England,  3  F.  &  F.  49. 

33 ;  Rex  v.  Stock,  2  Taunt.  339  ;  May-  (n)  Hunt  v.  Colsen,  3  Moo.  &  Sc. 

hew  V.  Suttle,  4  E.  &  B.  347,  357  ;  23  790  ;  Mayhew  v.  Suttle,  supra. 

L.  J.,  Q.  B.   372;  24  Id.   54;  R.   v.  (o)  Reg.  v.  Spurrell,  L.  R.,  1   Q.  B. 

Shipdam,  3  D.  &  R.  384 ;  R.  v.  Bard-  72  ;  35  L.  J.,  M.  C.  74. 
well,  2  B.  &  C.  161 ;  R.  v.  Kelstern, 

1  Occupation  of  employees.  —  McGee  v.  Gibson,  1  B.  Mon.  (Ky.)  105; 
Herrell  v.  Sizeland,  81  111.  457;  Webb  v.  Seckins,  62  Wis.  26.  In  McGee  r. 
Gibson,  a  farm  laborer  was  furnished  a  house  at  $2  per  month,  and  the  court 
held  that  he  was  not  a  tenant,  the  agreement  to  furnish  house  not  being  an 
independent  contract.  In  Herrell  v.  Sizeland,  a  man  and  wife  who  entered 
the  house  of  another,  and  took  care  of  him  till  his  death,  were  held  not  to 
be  tenants. 

381 


*237     TENANCIES   FOR   LESS   THAN   YEARS,    ETC.      [Ch.  YI.  S.  8. 

Service  franchise. —  Officers  or  sevvants  permitted  to  occupy 
houses  as  part  remuneration  for  their  services,  were  considered 
as  occupying  as  tenants  within  the  Reform  Act  (2  Will.  4, 
c.  45),  s.  27,  but  not  if  they  were  required  to  occupy  them 
with  a  view  to  the  more  efficient  performance  of  their 
duties  (jj);  but  this  distinction  has  been  done  away  witl^ 
by  s.  3  of  the  Representation  of  the  People  Act,  1884,  48 
Vict.  c.  3,  which  provides  that  "•  Avhere  a  man  himself  inhab- 
its any  dwelling-house  by  virtue  of  an}^  office,  service,  or 
employment,"  and  the  dwelling-house  is  not  inhabited  by 
any  person  under  whom  he  serves,  he  shall  be  deemed  for 
the  purposes  of  the  parliamentary  franchise  to  occupy  as  a 
tenant. 

Liability  of  servant  in  ejectment.  —  Where  a  servant,  on 
being  served  with  an  ejectment,  appeared  and  defended  the 
action,  it  was  held  that  he  had  thereby  made  liimself  person- 
ally liable  as  tenant  in  possession  (^q). 


[*2S7]  *  Sect.  8.  —  Vendor  and  Vendee. 

Occupation  under  contract  for  sale.  —  An  occupation  under 
an  agreement  for  the  purchase  of  land,  if  a  good  title  can  be 
made,  may  create  a  tenancy  (r),  which  must  be  determined 
by  a  demand  of  possession  or  otherwise  before  an  ejectment 
can  be  supported  (^s}.^     Where  a  person  was  let  into  posses- 

( p)   Hughes   V.    Chatliam    (Over-  Doe   cl.   Milburn    v.   Edgar,  2   B'mg. 

seers),  5  M.  &.  G.  54.  N.  C.  498;  Winterbottom  v.  Ingham, 

(7)  Doe  d.  James  v.  Stanton,  2  IJ.  7  Q.  B.  Oil. 
&  A.  371;   1   Chit.   R.  110  ;  Doe  d.  (s)  Right   d.    Lewis   v.    Beard,    13 

Atkins  V.  Roe,  2  Chit.  R.  170;  Doe  East,  210;  Doc  (/.  Newby  r.  Jackson, 

d.    Cuff  V.  Stradling,  2  Stark.    187;  1    B.  &  C.  448;   Doe   d.  Milburn   v. 

Cole  Ejec  84,  124.  Edgar,  2  Bing.  N.   C.  498 ;    Doe   d. 

()•)  Doe  d.  Newby  v.  Jackson,  1  B.  Stanway  v.  Rock,  4  M.  &  G.  30  ;  Doe 

&   C.   448;    Kirtland    v.    Ponnsett,  2  d.  Gray  v.  Stanion,  1  M.  &  W.  700 ; 

Taunt.  145;  Hearnei?.  Tomlins,  Pcake,  Cole  Ejec.  58. 
102;  Hope  v.  Booth,  1  B.  &  Ad.  408; 

'  Whether  vendee  is  a  tenant.  —  By  many  authorities  occupation  under 
a  contract  of  jjurclmsc  creates  a  t/nnsi  tenan<.'y,  Moshicr  v.  Rciling,  12  Me.  478; 
Millay  v.  Millay,  18  Id.  387  ;  Kclley  v.  Kcllcy,  23  Id.  102;  Goodenow  v.  Kilby, 
24  Id.  425;  Patterson  r.  Stoddard,  47  Me.  355;  Dunning  c.  Finson,  4G  Id. 
54G;  Gould  v.  Thompson,  4  Met.  (Mass.)  224;  Dakin  v.  Allen,  8  Cush.  (Mass.) 

882 


Cn.  VI.  S.  8.]  VENDOR    AND   VENDEE.  *237 

sion  under  an  agreement  of  pnrcliase,  he  paying  interest  on 
the  purchase-money  until  completion  of  the  purchase,  which 
was  to  be  in  three  months ;  and  the  purchase  not  being  then 
completed,  he  continued  in  possession :  it  was  held,  that 
there  was  only  a  tenancy  at  will,  which  might  be  determined 
without  a  notice  to  quit(i^).^  So  where  A.,  having  agreed 
to  buy  lands  of  B.,  had  paid  part  of  the  purchase-money,  and 
was  let  into  possession,  it  was  held,  that  this  was  a  mere 
tenancy  at  will,  which  might  be  determined  by  a  demand  of 
possession :  after  which  an  ejectment  might  be  maintained  (m), 

(0  Doe  (/.  Tomes  v.  Chamberlain,  (n)  Doe  d.  Hiatt  v.  Miller,  5  C.  &  P. 

5  M.  &  W.  14  ;  Doe  d.  Bord  v.  Cur-  595;  Ball  v.  Cullimore,  2  C,  M.  &  R. 
ton,  16  Q.  B.  807.  120. 

;5.3;  Doe  d.  Kemp  r.  Garner,  1  Q.  B.  (Ont.)  89;  Lundy  v.  Dovey,  1  C.  P. 
(Ont.)  38;  which  nierjj;es  in  the  fee  upon  completion  of  the  contract,  Shaw, 
C.  J.,  in  Gould  v.  Thompson,  4  Met.  (Mass.)  224,  229;  so  that  the  tjuasi 
tenant  will  not  be  liable  for  intervening  use  and  occupation.  Carpenter  v. 
U.  S.,  17  Wall.  489;  Dennett  r.  Penobscot,  57  Me.  425;  Cunningham  v.  Lyon, 
18(5  Mass.  582  (per  Field,  J.). 

If  contract  fail  of  completion  through  fault  of  occupant,  he  will  be  liable 
(by  these  authorities)  in  assiimpsif  for  use  and  occupation  from  date  of 
entry  as  tenant  of  the  vendor.  Gould  r.  Thompson,  4  Met.  (Mass.)  224; 
Patterson  v.  Stoddard,  47  Me.  855.  If,  however,  tiie  failure  to  complete  be 
the  fault  of  tlie  vendor,  the  occupant  will  not  be  liable,  unless  upon  new  and 
implied  contract.  Dvvight  v.  Cutler,  3  Mich.  5G6,  573;  Hogsett  y.  Ellis,  17 
Id.  851 ;  Cunningham  v.  Lyon,  186  Mass.  532  {per  Field,  J.). 

An  implied  tenancy  may  arise  after  supersedure  of  the  original  agreement, 
and  the  quasi  tenant  will  thereafter  be  liable  as  an  ordinary  tenant.  Fowke 
V.  Beck,  1  Spears  (S.  C.)  291 ;  Barton  v.  Smith,  66  Iowa,  75. 

Such  tenancy  might  arise  though  failure  to  complete  the  purchase  were 
fault  of  vendor,  if  he  notify  occupant  to  quit  or  pay  rent.  Dwight  v.  Cutler, 
8  Mich.  560,  573;  Hogsett  v.  Ellis,  17  Id.  351. 

There  are  many  cases  which  hold  that  an  oc(!upant  under  an  agreement  to 
purchase  is  not  a  tenant  in  any  such  sense,  that  an  action  for  use  and  occupa- 
tion may  be  maintained  against  him.  Bancroft  v.  Wardwell,  13  Johns. 
(N.  Y.)  489;  Smith  v.  Stewart,  6  Id.  47;  Sylvester  v.  Ralston,  31  Barb. 
(N.  Y.)  286,  288;  Stacy  r.  Vt.  Cent.  R.  R.  Co.,  82  Vt.  551. 

These  cases  hold  that  the  owner's  remedy  for  use  of  property  is  not 
assumpsit  but  trespass  upon  tlieory,  that  occupant  becomes  a  trespasser  ub 
initio. 

There  are  other  cases  which  hold  that  the  vendor  has  an  election  of  reme- 
dies, as  that  he  can  waive  the  tort,  &c.  Woodbury  v.  Woodbury,  47  X.  H. 
11,  21,  22  (per  Sargent,  J.)  ;  Clough  r.  Hosford,  6  Id.  231,  232. 

1  Notice  to  quit.  Is  it  necessary  ?  —  One  wdio  has  entered  under  an 
agreement  to  purchase  which  he  has  not  executed,  may  be  ejected  without 
notice,  Kilburn  v.  Ritchie,  5  Cal.  145 ;  or  demand  of  possession,  Doe  d. 
Kemp  I'.  Garner,  1  Q.  B.  (Ont.)  39. 

383 


*238     TENANCIES   FOR   LESS   THAN    YEARS,    ETC.     [Ch.  VI.  S.  8. 

but  not  an  action  for  use  and  occupation  (:r).  Where  the 
vendee  of  an  estate  sold  by  auction  has  been  suffered  to 
enter  upon  and  hold  the  premises  while  the  title  was  under 
investigation,  and  the  contract  has  afterwards  been  deter- 
mined for  want  of  title,  the  vendor  cannot  on  these  grounds 
only  recover  for  use  and  occupation,  although  a  jury  find 
that  the  occupation  has  been  beneficial  (?/).  But  where  by 
the  contract  of  sale  he  admits  himself  to  be  tenant  from 
week  to  week  to  the  vendor  at  80?.  per  week,  payable  in 
advance  or  otherwise,  such  rent  may  be  distrained  for  (z). 
And  if  the  vendee  retain  possession  after  the  contract  of 
purchase  has  gone  off,  he  will  be  liable  for  subsequent  use 
and  occupation  («). 

Under  contract  for  assignment  of  term.  —  An  occupation 
under  an  agreement  for  assigning  a  lease,  where  it  was 
agreed  that  the  assignee  should  pay  the  lessee,  until  the  com- 
pletion of  the  assignment,  at  the  rate  of  100/.  per  year,  was 
held  to  constitute  the  relation  of  landlord  and  tenant  be- 
tween the  lessee  and  the  assignee  (h) ;  but  where,  in  an  agree- 
ment for  the  sale  of  leasehold  premises,  to  be  paid  for 
[*238]  by  instalments,  it  was  stipulated  that,  in  *  default 
of  pa)nnents  of  the  instalments  at  specified  times, 
the  former  instalments  should  be  forfeited,  and  the  vendor 
should  not  be  compellable  to  convey,  upon  which  the  pur- 
chaser was  let  into  possession,  and  made  default ;  he  was 
held  to  be  from  thenceforth  a  mere  tenant  on  sufferance  (c). 

Occupation  by  vendor.  —  A  continuance  of  occupation  by 
a  vendor  after  conveyance  executed,  without  any  agreement, 
will   not  raise   an   implied  tenancy,  nor  render  him  liable 

(r)  Tn  re  Banks  v.  TJebbcek,  2  Low.  (o)  Howard    ;;.  Shaw,  8  M.  &  W. 

M.  &  P.  452.  118. 

(y)  Winterbottom  v.  In<ili!>m,  7  Q.  {}>)  Saunders  v.  Mnsgravc,  0  B.  & 

H.  Oil.     The  rents  taken  from    sub-  C.  624;  2  C.  &  P.  294;  Anderson  r. 

tenant8,notrceoverable  under  a  claim  Midland  R.  Co.,  3  E.  &  E.  014;    .'iO 

for  use  and  occupation  (Rumball  i'.  L.  J.,  Q.  B.  04.     See  also  Seaton  v. 

Wright,  1  C.  &  P.  589),  will  be  recov-  Booth,  4  A.  &  E.  528. 
erable  as  money  i)aid  to  the  use  of  (r)  Doe    d.    Moore    v.    Lawder,    1 

the  intendin}^  ventlor.     See  also  Kirt-  Stark.  11.  .TOH ;  Doe  </.  Rogers  v.  Pul- 

land  V.  Pounsett,  2  Taunt.  140.  len,  2  Bing.  N.  C.  749. 

{z)  Yeoman  v.  Kills.  L.  H.,  2  C.  I'. 
001 ;  30  L.  J.,  C.  P.  320. 

384 


Ch.  VI.  S.  8.]  VENDOR    AND    VENDEE.  *238 

to  an  action  for  use  on  occupation  (c?).  But  an  express 
agreement  that  the  purchaser  shall  receive  "all  rents  and 
profits "  from  the  day  fixed  for  completion  of  purchase, 
entitles  the  purchaser  to  a  fair  occupation  rent  from  the 
vendor  until  possession  is  given  (f?).  And  the  same  rule 
applies,  although  the  delay  in  completion  is  the  fault  of 
neither  party  (/). 

(d)  Tew  V.  Jones,  13  M.  &  W.  12.         ion  below;   L.  R.,  2   Q.  B.  D.  189; 

(fi)  Metropolitan  R.  Co.  v.  Defries,       36  L.  T.  150;  25  \V.  R.  271. 
L.  R.,  2  Q.  B.  D.  387  ;  36  L.  T.  494 ;  (/)  Sherwin  v.  Sliakespeare,  5  De 

25  W,  R.  841  —  C.  A.,  affirming  ^ecis-       G.,  M.  &  G.  517  ;  23  L.  J.,  Ch,  177. 

385 


[*239] 


*  CHAPTER  VII. 


OF   SUBSTITUTION  OF   PARTIES   TO   THE   CONTRACT  OF 
TENANCY  BY  ASSIGNMENTS,  SUB-LEASE,  BANK- 
RUPTCY,  MARRIAGE,   AND   DEATH. 


SECT.  PAGE 

1.  Assignments  generally      .     .  239 

2.  Contract  for  Assignment  .     .  240 

(a)  Generally 2-41 

(b)  Contract  for  Assignment 

of  Term 241 

(c)  Title  of  the  Vendor    .     .  244 

(d)  Title  Deeds 248 

(e)  Tables  showing  Value  of 

Leaseholds    ....  249 

3.  Assignment  of  Reversion  .     .  252 

4.  Severance  of  Reversion    .     .  255 

5.  Assignment  of  Term    .     .     .  257 

(a)  Absolutely 257 

(b)  By  way  of  Mortgage  .     .  263 

6.  Severance  of  Term  ....  264 

7.  Sub-lease 264 

8.  Attornment 266 

9.  Writs  of  Execution  ....  270 

(a)  Fieri  facias 270 

(b)  Elegit 271 


SEC 

T.  . 

PAGE 

10. 

Bankruptcy  of  Lessor     .     . 

274 

11. 

Bankruptcy  of  Lessee     .     . 

276 

(a)  Re-entry  by  Landlord  . 

275 

(b)  Vesting     of    Lease    in 

Trustees     in     Bank- 

ruptcy      

276 

(c)  Rescission  of  Lease  .     . 

277 

(d)  Disclaimer  of  Lease  by 

Trustees 

277 

(e)  Distress  for  Rent      .     . 

282 

(f)  Proof  for  Rent      .     .     . 

284 

12. 

Marriage 

285 

(a)  Of  female  Lessor    .     . 

285 

(b)  Of  female  Lessee     .     . 

286 

13. 

Death    .     .     , 

286 

(a)  Heirs  or  Devisees     .     . 

286 

(b)  Executors  and  Adminis- 

trators     

288 

Sect.  1.  — Assignments  generally. 

What  is  an  assignment.  —  An  assignment  is  the  transfer  or 
conveyance  of  some  pre-existing  term  or  reversion,  estate, 
right,  title,  or  interest.  The  party  assigning  is  called  the 
assignor,  and  he  to  whom  the  assignment  is  made  the 
assignee.  The  word  "  assigns "  extends  not  only  to  the 
immediate  assignee,  bnt  also  to  assignees  ad  infinitimi  (a). 
Every  lessor  may  assign  his  reversion,  and  every  lessee  may 
assign  his  terra,  unless  expressly  restrained  from  so  doing 


(a)    Spencer's  case,  6  Co.   R.,   10 ;   Bailey   v.  De  Crespigny,  L.   R.,  4  Q. 
B.  180,  180. 

386 


Ch.  VII.  S.  1]  ASSIGNMENTS   GENERALLY.  *240 

by  some  condition  in  his  lease  (J),^  or  be  a  tenant  at  will  (<?),2 
or  on  sufferance  (6?).  "  A  contingent,  an  executory,  and  a 
future  interest,  and  a  possibility  coupled  with  an  interest,  in 
any  tenements  or  hereditaments,  of  any  tenure,  whether  the 
object  of  the  gift  or  limitation  of  such  interest  or  possibility 
be  or  be  not  ascertained,  also  a  right  of  entry,  whether 
immediate  or  future,  and  whether  vested  or  contingent,  into 
or  upon  any  tenements  or  hereditaments  in  England,  of  any 
tenure,  may  be  disposed  of  by  deed  "  (g).  But  a  right  of 
re-entry  for  a  forfeiture  cannot  be  so  assigned  (/). 

*  Different  modes  of  assignment.  —  Persons  become  [*240] 
assignees  either  by  act  of  the  party  or  by  act  of  law : 
under  the  first  head  may  be  classed  those  who  become  so  by 
an  instrument  of  assignment ;  under  the  latter  head  may  be 
stated  those  who  have  thrown  upon  them  the  interest  in  the 
premises  —  in  conseqvience  of  the  property  having  been  taken 
under  writs  of  execution  —  by  bankruptcy  —  by  marriage  — 
or  by  death.  Each  of  those  modes  of  becoming  an  assignee 
will  be  considered  in  this  chapter. 

Assignments  must  be  by  deed.  —  Assignments  by  act  of  the 
parties,  whether  of  the  reversion  or  the  term,  must  be  by 
deed.3 


(6)  Post,  Chap.  XVII.,  Sect.  2.  (e)  8  &  9  Vict.  c.  106,  s.  6. 

(c)  Ante,  220.  (/)    Hunt   v.   Bishop,  8  Ex.  675 ; 

Id)  Ante,  230.  ante,  2. 

^  There  is  no  implied  covenant  not  to  assign.  Kobinson  v.  Perry,  21  Ga. 
183;  Cooney  v.  Hayes,  40  Vt.  478,  482. 

2  An  assignment  by  tenant  at  will  conveys  no  interest.  Whittemore  v. 
Gibbs,  24  N.  H.  484 ;  Cunningham  v.  Holton,  55  Me.  83 ;  Dingley  v.  Buffum, 
57  Me.  381. 

^  Assignments.  How  made,  (n)  In  Canada.  —  If  for  terms  longer  tlian 
limited  periods,  must  be  by  deed.  Dove  v.  Dove,  18  C.  P.  (Ont.)  424 ;  Gal- 
braith  v.  Irving,  8  Ont.  751 ;  Regina,  ex  rel.  Northwood  v.  Askin,  7  L.  J.  (Ont.) 
130;  Montgomery  v.  Spence,  23  Q.  B.  (Ont.)  39;  Ansley  v.  Peters,  1  Allen 
(N.  B.)  339. 

{h)  In  United  States.  —  Need  not  (in  most  states)  be  by  deed.  Halliday  t;. 
Marshall,  7  Johns.  (N.  Y.)  211. 

An  assignment  (unless  an  implied  one)  must  be  by  "an  instrument  of  as 
high  a  nature  "  as  the  lease.  If  lease  is  by  deed,  assignment  must  be.  Bridg- 
ham  IK  Tileston,  5  Allen  (Mass.)  371;  Brewer  v.  Dyer,  7  Cush.  (Mass.)  337; 
Wood  I'.  Partridge,  11  Mass.  488.  If  lease  is  by  parol,  assignment  may  be. 
Overman  v.  Sanboin,  27  Vt.  54,  56. 

387 


*240      ASSIGNjSIENT,    bankruptcy,    death,    etc.    [Ch.  VII.  S.  1. 

The  Statute  of  Frauds  Qj')  eiiacts,  "  that  110  leases,  estates 
or  interests,  either  freehold  or  terms  of  years,  or  any  uncer 
tain  interest,  not  being  copyhold  or  customary  interest,  of, 
in,  to  or  out  of  any  messuages,  manors,  lands,  tenements  or 
hereditaments,  shall  be  assigned,  granted  or  surrendered, 
unless  it  be  by  deed  or  note  in  writing,  signed  by  the  party 
so  assigning,  granting  or  surrendering  the  same,  or  their 
agents  thereunto  lawfully  authorized  by  writing ;  or  by  act 
and  operation  of  law." 

{g)  29  Car.  2,  c.  3,  s.  4. 

(c)  Implied  assignments  result  6y  operation  of  laiv  from  acts  of  parties,  even 
though  instrument  executed  be  an  insufBcient  one. 

An  unsealed  assignment  and  occupation  and  recognition  is  sufficient  to 
transfer  the  estate  and  liability  under  a  sealed  lease.  Sanders  v.  Partridge, 
108  Mass.  556.  A  parol  assignment  under  similar  circumstances  will  transfer 
the  term  and  liability  under  a  written  lease.  Dewey  v.  Payne,  19  Neb.  540. 
A  written  unsealed  assignment  unthout  entn/  and  recognition  is  not  effectual  if 
the  lease  is  under  seal.     Sanders  v.  Partridge,  108  Mass.  556. 

(rf)  Assignment  by  estoppel.  —  An  assignee  who  has  entered  and  taken  the 
benefit  of  a  lease  is  estopped  to  set  up  the  invalidity  of  the  assignment. 
Blake  v.  Sanderson,  1  Gray  (Mass.)  332. 

(e)  Presumption  of  assignment.  —  Possession  is  primd  facie  evidence  to  charge 
one  as  assignee.  Armstrong  v.  Wheeler,  9  Cow.  (N.  Y.)  88;  Williams  v. 
Woodard,  2  Wend.  (X.  Y.)  487,  492  {per  Savage,  Ch.  J.);  Acker  v.  With- 
erell,  4  Hill  (N.  Y.)  112.  The  occupant  must  rebut  the  presumption.  Provost 
V.  Calder,  2  Wend.  (N.  Y.)  517,  522  {per  Savage,  Ch.  J.)  ;  Cross  v.  Upson,  17 
Wis.  618;  Mariner  v.  Crocker,  18  Id.  251. 

Possession  is  not  usually  held  essential  to  the  liability  of  an  assignee  by 
deed  or  other  sufficient  absolute  assignment.  Eabcock  i\  Scoville,  56  111.  461  ; 
Weidner  v.  Foster,  2  Penn.  23;  Smith  ;•.  Urinker,  17  Mo.  148;  though  it  was 
80  held  in  Damainville  v.  Mann,  32  N.  Y.  197. 

(/)  Substitution.  —  Thougli  lessee  ordinarily  remains  liable  after  assigning, 
Wilson  V.  Gerhardt,  9  Col.  585;  Greenleaf  i;.  Allen,  127  Mass.  248,  yet,  if 
by  parol  agreement  new  tenant  is  substituted,  lessee  will  be  discharged. 
Wallace  v.  Kennolly,  47  N.  J.  L.  242,  245;  Vandekar  v.  Reeves,  40  Ilun 
(N.  Y.)  430;  Randall  v.  Rich,  11  Mass.  494;  Smith  v.  Niver,  2  Barb.  (N.  Y.) 
180.  In  Montgomery  r.  Spcnce,  23  Q.  B.  (Ont.)  39,  was  held  still  liable  not- 
withstanding lessor  had  accepted  the  assignee  (not  by  deed)  in  discharge  of 
lessee. 

In  Levering  v.  Langley,  8  Minn.  107,  it  was  hold  that  where  a  lessor  orally 
agreed  to  accept  assignee  in  discharge  of  lessee,  the  latter  was  not  thereafter 
liable. 

(ry)  Vohtntnri/  assignees.  —  If  vohmtary  assignee  of  lessee  enters  and  occu- 
pies, he  will  be  liable  for  rent,  Hoyce  i;.  Rakewell,  37  Mo.  492;  Dorrance  v- 
Jones,  27  Ala.  030;  Morton  v.  Pinckney,  8  Bnsw.  (N.  Y.)  135;  Young  r. 
Peyser,  3  Id.  308;  although  otiierwi.se,  if  he  enter  to  get  the  goods,  Lewis 
V.  Burr,  8  Id.  140. 

388 


Ch.  VII.  S.  2.]         THE   CONTRACT    FOR    ASSIGNMENT.  *241 

8  &  9  Vict.  c.  106,  s.  3. —  By  8  &  9  Vict.  c.  lOG,  s.  3,  "an 
assignment  of  a  chattel  interest,  not  being  copyhold,  in  any 
tenements  or  hereditaments,  shall  be  void  at  law  unless 
made  by  deed." 

Assignment  to  self  and  other  person.  —  By  22  &  23  Vict.  C. 
35,  s.  21,  "  any  person  shall  have  power  to  assign  personal 
property,  now  by  law  assignable,  including  chattels  real, 
directly  to  himself  and  another  person,  or  other  persons  or 
corporation,  by  the  like  means  as  he  might  assign  the  same 
to  another."  Therefore,  upon  the  appointment  of  a  new 
trustee  of  leaseholds  and  personal  estate,  the  continuing 
trustees  may  assign  the  trust  property  direct  to  themselves 
and  the  new  trustees  jointly,  upon  the  trusts  of  the  settle- 
ment ;  whereas  previously  an  assignment  and  re-assignment 
were  necessary  to  effect  this  object. 


Sect.  2.  —  The   Contract  for  Assignment. 
(a)  Generally. 

Sale  of  reversion.  —  By  virtue  of  the  4th  section  of  the 
Statute  of  Frauds,  the  effect  of  which  has  been  already  con- 
sidered (/i),  any  contract  to  sell  either  a  reversion  or  a  term 
must  be  in  writing. 

Notice  of  tenant's  interest.  —  Where  a  reversion  is  sold,  the 
.possession  of  a  tenant  is  notice  to  a  purchaser  of  the  actual 
interest  which  a  tenant  may  have  (^).  Where  the  purchaser 
at  the  date  of  the  contract  knew  that  the  property 
was  *  occupied  by  a  tenant,  and  did  not  inquire  as  [*241] 
to  the  tenant's  interest,  it  was  held  that  he  had 
notice  of  the  lease,  which  it  was  subsequently  discovered 
that  the  tenant  had  (k).  In  Caballero  v.  Henty  (T)^  the 
conditions  of  sale  of  a  public-house  stated  it  was  in  the 
occupation  of  a  tenant.     A  brewer,   intending  to   use   the 


(A)  Ante,  85.     And  see  Dart  V.  &  (k)  James   v.    Litchfield,   L.  R.,  9 

P.  (ed.  5),  A.D.  1876.  Eq.  51. 

(i)  Daniels  v.  Davison,  15  Ves.  249.  (/)  L.  E.,  9  Ch.  447  ;  4.3  L.  J.,  Ch. 

635;  30  L.  T.  314;  22  W.  R.  446. 

389 


*241     ASSIGNMENT,    BANKRUPTCY,    DEATH,    ETC.     [Cn.  VII.  S.  2. 

public-house  for  tlie  sale  of  his  beer,  agreed  to  buy  it.  He 
afterwards  learnt  that  it  was  under  lease  to  another  brewer 
for  a  term  of  which  eight  years  were  unexpired.  It  was 
held  that  the  purchaser  was  not  bound  to  ascertain  from  the 
tenant  the  terms  of  his  tenancy,  and  that  the  vendor  could 
not  enforce  specific  performance. 

In  Phillips  V.  INIiller  (???),  it  was  held  that  vendors  were 
not  bound  to  make  good  to  purchasers  certain  sums  paid  by 
the  purchasers  to  tenants  for  hay  and  straw  according  to 
market  x'^lue  (whereas  by  the  custom  of  the  country  fodder 
value  only  was  paj^able),  in  pursuance  of  special  agreements 
by  the  vendors  with  the  tenants  not  mentioned  in  the  par- 
ticulars of  sale.  This  decision,  however,  proceeded  prin- 
cipally on  the  ground  that  the  agreements  with  the  tenants 
were  personal  contracts  not  binding  on  the  reversion  (??). 
The  vendors  bonS,  fide  believed  that  it  was  unnecessary  to 
mention  the  agreements  in  the  particulars  of  sale. 

(b)    Contract  for  Assignment  of  Term. 

Where  A.,  being  possessed  of  a  messuage  and  premises  for 
the  residue  of  a  certain  term  of  years,  agreed  with  B.  to 
relinquish  possession  to  him  and  to  suffer  him  to  become  ten- 
ant of  the  premises  for  the  residue  of  tlie  term,  in  considera- 
tion of  B.'s  paying  a  sum  of  money  towards  completing 
certain  repairs  of  the  premises  ;  it  was  held  that  this  was  an 
agreement  relating  to  the  sale  of  an  interest  in  land  within^ 
the  statute  (o).  A.,  being  tenant  under  a  parol  agreement 
for  a  seven  years'  lease,  agreed  to  give  up  the  immediate  pos- 
session thereof  to  B.,  in  order  that  B.  might  enter  thereon  as 
tenant;  in  consideration  whereof,  and  also  as  a  compensation 
for  certain  improvements  made  by  A.,  and  for  the  value  of 
certain  artick^s  left,  B.  agreed  to  pa}'^  A.  100/.  A.  accord- 
ingly relinquisluid  and  gave  up  possession  of  the  premises  to 

{in)  \j.  R.,  10  C.   I'.  4U0 ;   Jt  L.  ,T.,  to  incronso  rent  nor   give    notice   to 

C.  V.  2(\i>:  32  L.  T.  OnS,  Kxcli.  Cii..  quit  w.ms  held  not  to  liinil  a  pnrcliasor 

reversinfj  di'cision  below,  I>.  II.,  0  C.  of  the  lan(!!or<l's  interest. 
T.  201.  (<0  IJuttermere    v.   Hayes,  5   M.  ..<i 

(n)  See  also   Hoherts  v.  'I'regaskis,  W.  \-)i\.     See  also  Leaf  v.  Tuton,  10 

.18  L.  T.  17(1,  where  an  agreement  not  M.  &  W.  :'.!):!. 

390 


Ch.  VII.  S.  2.]        THE   CONTRACT   FOR   ASSIGNMENT.  *242 

B.,  who  was  tlieveupon  accepted  as  tenant  from  year  to  year, 
at  a  different  rent  from  that  formerly  paid  by  A. :  and  B. 
afterwards,  in  part-performance  of  the  agreement  on  his 
part,  paid  A.  51Z.  In  an  action  to  recover  the  balance 
of  the  *  100?. :  —  held,  that  the  contract  was  witliin  [*242] 
the  statute,  and  consequently  that  the  plaintiff  was 
not  entitled  to  recover  (;?);  except,  perhaps,  for  money 
found  to  be  due  on  an  account  stated  (^q).  So,  in  consideration 
that  A.,  who  was  in  the  possession  and  occupation  of  prem- 
ises wherein  he  carried  on  the  business  of  a  milkman,  would 
yield  up  the  possession  and  occupation  of  the  said  premises 
to  B.,  and  permit  him  thenceforth  to  occupy  the  same,  and 
would  assign  over  to  B.  all  his  property  in  the  stock  and 
plant  and  deliver  the  same  to  B.,  the  latter  promised  to  pay 
a  certain  sum :  —  held,  that  this  was  a  contract  for  an  inter- 
est in  or  concerning  lands  within  the  statute  (r).  In 
Hodgson  V.  Johnson  it  was  agreed  verbally  that  the  plaintiff 
should  take  possession  of  a  brickyard  of  which  the  defendant 
was  tenant,  and  take  the  plant  and  bricks  at  a  valuation,  and 
that  the  defendant  should  pay  up  all  rent  due,  and  endeavour 
to  induce  the  landlord  to  accept  the  plaintiff  as  tenant.  The 
plaintiff  took  possession  and  gave  the  defendant  a  warrant  of 
attorney  for  payment  of  the  sum  at  which  the  bricks  and 
plant  were  valued.  A  distress  was  afterwards  put  in  upon 
the  premises,  and  the  plant  and  bricks  sold  for  rent  due  from 
the  defendant  before  the  agreement,  and  the  plaintiff  was 
turned  out  of  possession  by  the  landlord.  In  an  action  for 
breach  of  the  agreement  to  pay  up  the  rent,  it  was  held,  that 
the  contract  taken  in  its  entirety  was  a  contract  for  the  sale 
of  an  interest  in  lands  within  the  statute,  and  therefore  that 
the  plaintiff  could  not  sever  and  sue  only  upon  that  part 
which  related  to  the  payment  of  rent  (s).  A.  and  B.  agreed 
orally  that  A.  should  pay  37/.  for  the  interest  of  B.  in 'prem- 
ises occupied  by  him  as  a  slaughterhouse,  and  for  the  fixtures, 

(p)  Kelly  V.  Webster,  12  C.  B.  282.  (s)  Hodgson  v.  Johnson,  E.  B.  &  E. 

(q)  Cocking  v.  Ward,  1  C.  B.  858 ;  085 ;  5  Jiir.,  N.  S.  290.    See,  however, 

Laycock  ;;.  Tickles,  4  B.  &  S.  497 ;  33  Tulbrook  v.  Lawes,  L.  R.  1  Q.  B.  D. 

L.  J.,  Q.  B.  43.  284 ;  and  88,  ante. 


(r)  Smart  v.  Harding,  15  C.  B.  652. 


591 


*2-13      ASSIGNMENT,  BANKRUPTCY,    DEATH,   ETC.    [Ch.  VII.  S.  2. 

B.  to  return  10/.  if  A.  were  refused  a  licence  to  use  the 
premises  as  a  slaughterhouse.  The  premises  and  fixtures 
were  transferred  to  A. ;  and  B.  received  the  37Z.  Subse- 
quently an  action  was  brought  to  recover  back  the  lOZ.,  a 
licence  to  A.  to  use  the  premises  as  a  slaughterhouse  having 
been  refused :  held,  that  the  contract  being  executed  as  far 
as  regarded  the  land,  and  the  promise  sued  on  relating 
wholly  to  money,  the  plaintiff  might  recover,  though  the 
contract  was  not  in  writing  (^).  An  agreement  respecting 
the  transfer  of  an  interest  in  land  not  in  writing  cannot  be 
enforced  by  action  to  recover  the  consideration  after  the 
transfer  has  been  executed,  and  nothing  remains  to  be  done 
but  to  pay  the  consideration  money  ;  but  if  after  such  transfer 
the  defendant  admits  owing  the  stipulated  price,  the  amount 

may  be  recovered  upon  an  account  stated  (w). 
[*243]       *  The  Statute  of  Frauds  (29  Car.  2,  c.  3),  s.  4  (a;), 

extends  to  sales  by  auction  (^).  The  day  for  com- 
pletion of  the  purchase  of  an  interest  in  land  inserted  in  a 
written  contract  cannot  be  waived  by  oral  agreement,  and 
another  day  substituted  in  its  place  (2:). 

Sales  by  auction.  Particulars  of  sale.  —  An  auctioneer  sell- 
ing a  lease  is  bound  to  state  in  the  particulars  or  conditions 
of  sale  a  notice  given  by  the  landlord  of  his  intention  to 
enter  unless  the  premises  are  put  in  repair,  although  the 
vendee  is  aware  of  the  ruinous  state  of  the  buildings,  and  it 
is  alleged  that  the  auctioneer  was  not  apprised  of  the  no- 
tice («)  :  and  whore  leasehold  premises  are  sold  by  auction, 
and  the  lease  containing  the  usual  covenant  to  repair  is  pro- 
duced and  read  to  the  bidders,  if  any  of  the  buildings  de- 
mised and  described  in  the  lease  have  been  pulled  down 
before  the  sale,  the  purchaser  is  not  bound  to  complete  the 
purchase,  and  may  recover  back  his  deposit,  although  the 

(0  Green  v.  Saddiiifrton,  7   E.  &  B.  &  A.  3.",;  Konworthy  v.  Schofiehl,  2 

503.  B.  &  C.  !)48. 

(u)  Cocking  i--.  Ward,  1  C.  I?.  158;  (z)  Stowell  v.   Robinson,  .3   Ring. 

Laycock  v.  Pickles,  4  B.  &  S.  4!)7;  33  N.    C.   928;  Moore  v.   Campbell,    10 

L.  .1.,  Q.  B.  4.3.  Kxch.   323;    Noble   i;.   Ward,  L.  K., 

(x)  Ante.,  85.  1  E.X.  117  ;  35  L.  J.  Ex.,  81. 

((/)  Walker  v.  Constable,  1    Bos.  &  («)  Stevens  v.  Adanison,  2   Stark. 

P.  30(5 ;   Kairhrotiicr  v.  Siiimioii^i,  5  B.  422. 

302 


Cu.  VII.  S.  2.]         THE   CONTRACT    FOR   ASSIGNMENT.  *244 

building  pulled  down  be  not  described  in  tlie  particulars  of 
sale  (i).  Where  leasehold  premises  were  sold  by  auction  by 
the  defendant  to  the  plaintiff,  under  a  condition  that  the 
defendant  should  make  a  good  title,  it  was  held  no  defence 
to  an  action  for  not  making  a  good  title,  that  the  premises 
had  been  assigned  by  the  plaintiii"  to  the  defendant  by  way 
of  mortgage,  and  that  a  good  title  was  made,  except  that  the 
premises  were  out  of  repair,  of  which  the  plaintiff  had  full 
knowledge,  and  that  the  lessor  had  not  re-entered  as  he  was 
entitled  to  do  (c). 

Misdescription.  —  In  the  conditions  of  sale  of  the  lease  of  a 
public-house  it  was  described  as  "  a  free  public-house,"  and 
the  lease  contained  a  covenant  that  the  lessee  and  his  assigns 
should  take  their  beer  from  a  particular  brewer ;  though  the 
lease  was  entirely  read  over  by  the  auctioneer  at  the  time  of 
the  sale,  who  said  mistakenly  that  it  was  a  free  public-house, 
and  that  the  covenant  about  the  beer  had  been  decided  to  be 
bad ;  it  was  ruled  that  a  [)urchaser  who  heard  the  lease  read 
over  was  not  bound  under  these  circumstances  to  complete 
the  purchase,  but  was  entitled  to  recover  back  the  de- 
posit (c?).  Where  the  particulars  of  sale  of  premises  in 
Covent  Garden  stated,  that  under  the  lease  "  no  offensive 
trade  was  to  be  carried  on,  and  that  the  premises  could  not 
be  let  to  a  coffee-house  keeper  or  working  hatter,"  and  the 
original  lease  when  produced  appeared  to  prohibit  the  busi- 
ness of  a  brewer,  baker,  sugar-baker,  vintner,  victualler, 
butcher,  tripe-seller,  poulterer,  fishmonger,  cheese-seller, 
fruit-seller,  herb-seller,  coffee-house  keeper,  working  hatter 
and  many  others,  and  the  sale  of  coals,  potatoes  or 
any  provisions,  it  was  *  held,  that  there  was  such  a  [*244] 
material  discrepancy  between  the  particulars  and  the 
lease  so  as  to  entitle  a  purchaser  to  rescind  his  contract  (<?). 
Where  an  original  lessee  of  land  subject  to  a  covenant 
against  certain  obnoxious  trades,  with  a  proviso  for  re-entry 
for  a  breach  of  such  covenant,  granted  under-leases  of  houses 
erected  on  the  land,  not  containing  a  similar  covenant  and 

(b)  Granger  i\  Worms,  4  Camp.  83.  (d)  Jones  v.  Edney,  3  Camp.  285. 

(c)  Barnett  v.  Wheeler,  7  M.  &  W.  (e)  Flight  i;.  Rooth,  1  Biug.  N.  C. 
364;  Wilson  v.  Wilson,  14  C.  B.  G16.        370. 

393 


*244    ASSIGNMENT,    BANKRUPTCY,    DEATH,    ETC.     [Cu.  VII.  S.  2. 

proviso,  it  was  held,  that  a  purchaser  by  auction  of  houses 
erected  on  part  of  this  land,  and  of  the  improved  ground 
rents  of  the  houses  so  under-let,  might  recover  back  his 
deposit-money  from  the  auctioneer,  the  omission  of  the  pro- 
viso in  the  under-leases  not  having  been  specified  in  the  con- 
ditions or  mentioned  at  the  time  of  the  sale  (/).  Where 
the  particulars  of  sale  by  auction  of  several  lots  described 
one  as  subject  to  the  same  rights  of  way  as  were  then 
enjoyed  under  existing  leases  of  certain  houses,  one  of  which 
leases  was  to  be  seen ;  and  a  plan  annexed  showed  one  right 
of  way  to  those  houses  over  that  lot,  but  not  another,  and  it 
also  showed  another  right  of  way  over  that  lot  to  a  second 
adjoining  lot,  and  the  same  person  bought  these  two  lots  by 
two  biddings,  but  a  single  contract  was  entered  into  for  the 
whole  :  —  it  was  held,  that  he  might  rescind  the  contract  as 
to  both  lots,  and  that  it  was  not  a  case  for  the  application  of 
a  compensation  provision  as  to  misdescription  of  the  prem- 
ises (^). 

Where  a  public-house  was  sold  with  the  victuallers'  and 
other  licences,  the  vendor  not  being  at  the  time  entitled  to 
such  licences,  nor  able  to  get  them  transferred  to  the  pur- 
chaser in  due  time  pursuant  to  his  contract,  it  was  held  that 
the  purchaser  might  rescind  the  contract  and  recover  back 
his  deposit  (/t). 

It  may  be  here  mentioned  that  an  auctioneer  who  has  sold 
goods  has  no  authority  to  pay  the  landlord's  rent,  in  order 
to  avoid  the  goods  being  distrained  (i). 

(c)   Title  of  the    Vendor. 

Common  law  -warranty  of  lessor's  title.  —  Prior  to  the  Ven- 
dor and  Purchaser  Act,  1874,  there  Avas,  in  every  contract 
for  the  sale  of  an  existing  lease,  an  implied  undertaking  by 
the  seller  (if  the  contrary  were  not  exjjressed,  as  it  usually 
was  in  practice)  to  make  out  the  lessor's  title  to  demise  (/r), 

(/)  Waring   v.  IIogRart,  1   lly.  &  (h)  Claydon  r.  Green,  L.  R.,  3  C.  P. 

Moo.  30;  hut  see  IlaywarJ  v.  I'arko,  511 ;  37  L.  J.,  C.  P.  22(5. 

IG  C.  B.  205.  (/)  Sweetin},',  app.  v.  Turner,  rcsp., 

(ff)  Dykes  v.  Blakes,  4  Bing.  N.  C  41  L.  J.,  Q.  B.  58. 

403.  (Z)  Hall  I'.  Belty,  4  M.  &  0.  410. 

804 


Cii.  VII.  S.  2.]  THE  CONTRACT   FOR   ASSIGNMENT.  *245 

and  without  showing  such  title,  the  seller  could  not  maintain 
an  action  at  law  against  the  buyer  for  refusing  to  complete 
the  purchase  (?). 

"Warranty  dispensed  with  by  V.  &  P.  Act,  1874.  —  This  war- 
ranty is  now  dispensed  Avith  by  the  Vendor  and  Pur- 
chaser *Act,  1874  (37  &  38  Vict.  c.  78),  which  by  [*245] 
sect.  2,  rule  1,  enacts  that  "  under  a  contract  to  as- 
sign a  term  of  years,  whether  derived  or  to  be  derived  out 
of  a  freehold  or  leasehold  estate,  the  intended  assign  shall 
not  be  entitled  to  call  for  the  title  to  the  freehold."  It  is  to 
be  observed  that  this  rule  only  barred  the  purchaser's  right 
to  call  for  the  title  to  the  freehold,  so  that  if  an  under-lease 
be  sold,  the  title  of  any  mesne  landlord  might  still  be  called 
for ;  and  further  that  the  rule  does  not  apply  at  all  to  a 
lease  for  lives  (m). 

The  Conveyancing  and  Law  of  Property  Act,  however  (44  & 
45  Vict.  c.  41),  enacts,  by  sect.  3,  subsect.  (1),  that  "under 
a  contract  to  sell  and  assign  a  term  of  years  derived  out  of  a 
leasehold  reversion,  the  intended  assign  shall  not  have  the 
right  to  call  for  the  title  to  the  leasehold  reversion ; "  but 
this  section  by  subsects.  (9)  and  (10)  applies  only  "if  and 
as  far  as  a  contrary  intention  is  not  expressed  in  the  contract 
of  sale,"  and  "  to  sales  made  after  the  commencement "  of 
the  act,  i.e.  by  s.  2,  on  or  after  the  1st  January,  1882. 

Purchaser  to  assume  that  covenants  performed.  —  The  same 
section  (3)  of  the  Conveyancing  Act,  following  the  common 
forms  in  conditions  of  sale,  provides  that  a  purchaser  is  to 
assume  that  covenants  have  been  performed,  &c.,  as  fol- 
lows :  — 

"  (4.)  Where  land  sold  is  held  by  lease  (not  including 
under-lease')  the  purchaser  shall  assume,  unless  the  contrary 
appears,  that  the  lease  was  duly  granted ;  and  on  production 
of  the  receipt  for  the  last  payment  for  rent  under  the  lease 
before  the  date  of  the  actual  completion  of  the  purchase,  he 
shall  assume,  unless  the  contrary  appears,  that  all  the  cove- 
nants and  provisions  of  the  lease  have  been  duly  performed 

(0  Souter  !'.  Drake,  o  B.  &  Ad.  W.  820;  2  Dowl.,  N.  S.  230;  Lay- 
992 ;  De  Medina  v.  Norman,  9  M.  &       thorp  v.  Bryant,  2  B.  &  C.  735. 

(^m)  See  Dart  V.  &  P.  vol.  i.  p.  290. 

395 


*246   ASSIGNMENT,   BANKRUPTCY,   DEATH,   ETC.      [Ch.  VII.  S.  2. 

and  observed  up  to  the  date  of  the  actual  completion  of  the 
purchase. 

"  (5.)  Where  land  is  held  by  under-lease,  the  purchaser 
shall  assume,  unless  the  contrary  appears,  that  the  under- 
lease and  every  superior  lease  were  duly  granted;  and  on 
production  of  the  receipt  for  the  last  payment  due  for  rent 
under  the  under-lease  before  the  date  of  the  actual  comple- 
tion of  the  purchase,  he  shall  assume,  unless  the  contrary 
appears,  that  all  the  covenants  and  provisions  of  the  under- 
lease have  been  duly  performed  and  observed  up  to  the  date 
of  actual  completion  of  the  purchase,  and  further  that  all 
rent  due  under  every  superior  lease,  and  all  the  covenants 
and  provisions  of  every  superior  lease,  have  been  paid  and 
duly  performed  and  observed  up  to  that  date." 

Agreement  for  lease.  —  Upon  a  contract  for  the  sale  of  an 
agreement  for  a  lease  it  is  not  an  implied  condition  that  the 
lessor  has  power  to  grant  the  lease  (jn).  This  rule  was  laid 
down  before  the  Vendor  and  Purchaser  Act,  which  affirms 

its  principle,  but  does  not  expressly  embody  it. 
[*240]       *  Construction  of  contracts  of  sale.  —  An  agreement 

for  the  sale  of  all  B.'s  interest  in  a  lease  does  not 
mean  free  from  all  under-leases  by  way  of  mortgage  and 
other  incumbrances  then  affecting  the  premises  (o).  When 
it  was  stipulated  (before  the  Vendor  and  Purchaser  Act) 
that  the  vendor  sliould  not  be  obliged  to  produce  the  lessor's 
title,  the  vendee  might,  notwithstanding,  insist  upon  defects 
in  the  lessor's  title,  which  were  disclosed  by  the  abstract 
delivered,  or  which  he  had  discovered  aliunde  (jo) ;  but  it 
was  said  to  be  otlierwise  where  the  purchaser  had  agreed  to 
take  the  vendor's  title  "as  he  holds  the  same,"  without 
requiring  the  lessor's  title  (^).  The  Vendor  and  Purchaser 
Act  appears  to  admit  the  objection  of  defects  discovered  in 

(n)  Kintrca  v.  Preston,  1  II.  &  N.  Warren  v.  TJicliardson,  1  Younge,  1 ; 

357  ;  25  L.  J.,  Ex.  287.  Harnett  v.  Yielding,  2  Sch.  &  Lef.  649. 

(o)  Phelps  y.  Potluro,  1(5  C.  B.  :170.  (7)  Spratt    v.   .JelTery,  10   B.  &  C. 

(p)  Shepherd  v.  Keatley,  1   C,  M.  24!);  llayward  v.  Parke,  IOC.  B.  295; 

&  U.  117;  Wheeler  v.  Wright,  7  M.  &  Hume  r.  Pocoek,  14  W.  II.  191  ;  Mills 

W.  .%9;  Barnettj;.  Wheeler,  Id.  .3(54;  r.    Tweed,   L.   R.,    1    C.   P.   89.     See 

Sellick  V.  Trevor,  11  M.  &  W.  722;  Waddell  v.  Wolfe,  L.  R.,  9  Q.  B.  616. 
Darlington    v.    Hamilton,    Kay,  550; 

896 


Ch.  VII.  S.  2]  THE   CONTRACT   FOU   ASSIGNMENT.  *247 

the  lessor's  title  by  the  abstract  or  otherwise.  If  a  person, 
who  has  contracted  to  purchase  the  lease  of  a  house,  subse- 
quently discovers  that  it  was  originally  leased  jointly  with 
another  house,  and  that  the  lessor  could  enter  for  breach  of 
covenants  in  respect  of  eitlier  house,  he  seems  clearly  not 
bound  to  complete  the  purchase  (;•). 

"  Title  to  be  approved  by  solicitor."  —  If  a  contract  for  the 
purchase  of  a  lease  state  that  it  is  made  "subject  to  the 
approval  of  the  title  by  the  purchaser's  solicitor,"  then,  in 
the  absence  of  mala  fides  on  the  part  of  the  purchaser  or  his 
solicitor,  the  vendor  cannot  enforce  specific  performance  of 
the  contract  if  the  purchaser's  solicitor  disapprove  of  the 
title. 

Hussey  v.  Horne-Payne.  —  This  rule  was  laid  down  by  Fry, 
J.,  in  Hudson  v.  Buck  (s),  is  stated  in  Hussey  v.  Horn- 
Payne  (f)  in  the  Court  of  Appeal  to  the  same  effect,  and 
although  questioned  by  Lord  Cairns  in  the  House  of 
Lords  (u)  is  still  law. 

Objection  on  ground  of  forfeiture.  —  It  was  usual,  before  the 
Conveyancing  Act,  for  the  vendor  of  a  leasehold  interest  to 
protect  himself  by  a  stipulation  that  the  production  of  the 
last  receipt  for  rent  should  be  conclusive  evidence  of  the  due 
performance  of  covenants.  This  stipulation  was  always 
strictly  construed  against  the  purchaser  (x).  It  is  now,  as 
we  have  seen,  implied  into  all  contracts  by  s.  3  of  the  Con- 
veyancing Act.  If  it  be  negatived,  however,  a  purchaser  of 
a  leasehold  may  object  to  the  vendor's  title,  on  the  ground 
that  he  has  incurred  a  forfeiture,  e.g.  by  omitting  for 
the  space  of  a  month  to  pay  the  annual  premium  *  of  [*247] 
insurance  pursuant  to  his  covenant,  although  it  does 
not  appear  that  the  lessor  has  taken  advantage  of  the  for- 

()•)  Blake  v.   Phinn,  .3  C.  B.  976;  (w)  L.  R.,  4  App.  Cas.  411 ;  48  L. 

Madeley  v.  Booth,  2  De  Gex  &  Sm.  J.,  Ch.  846;  41  L.  T.  1  ;    27    W.  R. 

718 ;    Darlington    '•.  Hamilton,    Kay,  585.     The  House  of   Lords    affirmed 

550;  Penniall  v.  Harborne,  11  Q.  B.  the  judgment  of  the  Court  of  Appeal, 

368.  but  on  different  grounds. 

(s)  L.  R.,  7  Ch.  D.  683;  47  L.  J.,  (x)  See  Bull  v.  Hutchens,  32  Beav. 

Ch.  247  ;  38  L.  T.  56  ;  26  W.  R.  190.  615;  Laurie  v.  Lees,  7  App.  Cas.  at 

(0  L.  R.,  8  Ch.  D.  670;  47  L.  J.,  p.  32. 
Ch.   751;   38   L.   T.   543;   26  W.  R. 
703— C.  A. 

397 


*247    ASSIGNSIENT,    BANKRUPTCY,    DEATH,    ETC.     [Ch.  VII.  S.  2. 

feiture  (?/).  Under  a  contract  for  the  purchase  of  the  resi- 
due of  an  old  term,  a  purchaser  is  not  bound  to  accept  a 
similar  new  lease  :  for  the  former  differs  in  value  from  the 
latter,  the  residue  of  an  old  term  being  in  certain  respects 
more  advantageous  (2)  ;  but  a  purchaser  cannot  refuse  to 
perform  an  agreement  for  the  sale  of  "  the  unexpired  term 
of  eight  years'  lease  and  goodwill,"  on  the  ground  that  only 
seven  years  and  seven  months  of  the  term  remained  (a). 

Objection  on  ground  of  unusual  covenants.  —  A  purchaser 
cannot  resist  specific  performance  on  the  ground  that  the 
lease  purchased  contains  unusual  covenants  not  mentioned  in 
the  contract  of  sale  (6). 

Lessor's  licence  to  assign.  —  It  is  incumbent  on  the  vendor 
of  a  lease  which  contains  a  restriction  against  alienation,  to 
prove  that  he  has  obtained  the  lessor's  consent  to  the  assign- 
ment (c) ;  and  it  is  also  incumbent  on  him,  and  not  on  the 
purchaser,  to  procure  the  lessor's  licence  for  the  assign- 
ment (c^). 

Premium  for  licence.  —  If  necessary,  he  must  pay  any  rea- 
sonable premium  and  extra  rent  required  for  such  consent  (e). 
This  was  held  in  a  case  where  the  lessee  held  at  the  rent  of 
36Z.  for  a  term  of  thirty-five  years,  and  the  lessor  refused  the 
licence  for  a  sub-lease  for  twenty-one  years  at  a  rent  of  65^., 
except  upon  payment  of  an  increased  rent  of  61.  and  a  pre- 
mium of  501.  Stuart,  V.-C,  decreed  specific  performance, 
and,  in  the  event  of  the  lessee  being  unable  to  grant  a  proper 
sub-lease,  an  inquiry  as  to  damages  (^).  The  failure  to  pro- 
cure from  the  lessor  a  licence  to  assign,  or  to  register  pre- 
vious assignments,  before  the  day  on  which  it  is  agreed  to 
assign  and  give  possession  of  leasehold  premises,  is  no  breach 
of  the  agreement  (/). 

(y)  See  Wilson  v.  Wilson,  14  C.  B.  and  see  Bermingham  v.  Sheridan,  33 

616.  L.  J.,  Ch.  571 ;  12  W.  R.  G58;  Ferrer 

(z)  Mason  v.  Corder,  7  Taunt.  9.  v.  Nash,  35  Beav.  107  ;  14  W.  R.  S  ; 

(a)  Belworth  v.  Ilassell,  4   Camp.  Wallis  i-.  Littell,  11  C.  B.,  N.  S.  3()!); 

140.  31  L.  J.,  C.  r.  100 ;  Barton  v.  Banks, 

(ft)  Grosvonor  v.  Grosvenor,  28  L.  2  F.  &  F.  213;  Davis  v.  Nisbett,   10 

J.,  Ch.  173;  5  Jur.,  N.  S.  117.  C.  B.,  N.  S.  752;  31  L.  J.,  C.  P.  (5. 

(c)  Mason  v.  Corder,  7  Taunt.  9;  (e)  Hilton  v.  Tipper,  18  L.  T.  020; 
Winter  v.  l)innerfj;ue,  14  W.  R.  099.  10  W.  K.  888. 

(d)  Lloyd  V.  Crisj),  5  Taunt.  249;  (/")  Stowell  c.  Robinson,  3  Ring.  N. 

398 


Ch.  VII.  S.  2.]         THE   CONTRACT   FOR   ASSIGNMENT.  *248 

Proof  of  discharge  of  au  incumbrance.  —  A  purchaser  is  not 
compellable  to  accept  a  title  to  premises  formerly  subject  to 
an  incumbrance,  the  discharge  of  which  is  shown  only  by 
presumption :  thus  where  a  leasehold  was  sold,  subject  to  a 
ground  rent,  which  was  said  to  be  apportioned  out  of  a  larger 
rent,  but  the  apportionment  was  not  evidenced  by  an  exist- 
ing deed,  but  only  by  the  acceptance  of  a  mesne  landlord, 
and  presumption ;  it  was  held  that  the  purchaser  was  not 
bound  to  accept  the  title  (^). 

*  (d)  Rights  and  Liabilities  as  to  Title  Deeds.   [*248] 

It  is  an  established  principle  that  whoever  is  entitled  to 
the  land  has  also  a  right  to  all  the  title-deeds  affecting  it  (A) ; 
and  he  may  maintain  an  action  of  detinue  against  any  person 
who  withholds  them  from  him  after  demand  made  (z)  ;  or  an 
action  of  trover  (/t)  ;  consequently  the  party  entitled  to  the 
term  is  entitled  to  the  lease. 

Lien  on  lease.  —  A  solicitor's  lien  on  a  lease  will  not  pre- 
vent the  lessee  from  assigning  estate  (V). 

Custody  of  expired  lease.  —  After  the  expiration  or  determi- 
nation of  a  lease  the  lessor  is  not  entitled  to  possession  of  it 
as  against  the  lessee,  nor  can  he  maintain  trover  for  it  (w). 

(e)  Value  of  Leaseholds,  Reversions  and  Annuities. 

Mode  of  valuation  of  property.  —  In  order  to  show  the  value 
of  leasehold  estates,  and  to  enable  those  persons  who  intend 
either  to  purchase  or  sell  to  form  their  judgment,  the  follow- 
ing tables  have  been  extracted  from  a  very  accurate  and  use- 
ful work  (?i)  upon  the  subject.      The  first  table  shows  the 

C.  928.     And  see  Wrighton  v.  New-  Burton,  1  Exch.  189 ;  Newton  v.  Beck, 

ton,  2  C,  M,  &  R.  124.  3  H.  &  N.  220. 

(g)   Barnwell   v.  Harris,  1  Taunt.  (k)  Harrington  v.  Price,  S  B.  &  Ad. 

430.  173 ;  Hooper  v.  Ranisbottoin,  0  Taunt. 

(A)  Harrington  v.  Price,  3  B.  &  Ad.  12;  Davies  v.  Vernon,  0  Q.  B.  443. 
170;  Hooper  r.  Kamsbottom,  6  Taunt.  (/)  Odell  i-.  Wake,  3  Camp.  394. 

12.  (,«)  Hall  V.  Ball,  3  M.  &  G.  242; 

(0  Lightfoot  V.  Keane,  1  M.  &  W.  Elworthy  v.  Sanford,  3  H.  &  C  330; 

745 ;  Roberts  v.  Showier,  13  M.  &  W.  34  L.  J.,  Ex.  42. 

609;  2  D.  &  L.  687;  Slater  v.  Dan-  (n)  Tables  for  the  Purchasing  of 

gerfield,  15  M.  &  W.  203 ;  Goode  v.  Estates,  &c.,  by  William  Inwood,  Ar- 

399 


*24:8     ASSIGNMENT,    BANKRUPTCY,    DEATH,    ETC.    [Ch.  VII.  S.  2. 

value  of  leases,  estates  or  annuities  for  terms  of  years  certain, 
in  number  of  years'  purchase  of  the  clear  annual  rent,  at  the 
several  rates  of  3,  4,  5,  6,  7,  8,  9  and  10  per  cent,  interest, 
which  the  purchaser  may  thereby  make  of  his  money.  The 
clear  annual  rent  must  in  all  cases  be  ascertained,  by  deduct- 
ing from  the  gross  rent  of  the  estate,  or  value  of  the  annuity, 
the  ground  rent,  all  taxes,  and  other  annual  charges,  which 
would  fall  upon  the  purchaser. 

cliitect   and   Surveyor,    (1845).      To  .ind  — have  been  used  ;  the  sign  +  sig- 

arrive  at  as  near  an  approximation  nifying  tiiat  the  value  is  a  little  more 

as  possible  to  the  true  value,  by  the  than  that  stated,  and  the  sign— that 

use    of   vulgar  fractions   only,  with-  it  is  a  little  less. 
out  decimals,  the  algebraical  signs  + 

400 


Cii.  VII.  S.  2.]   TABLE  OF  VALUE  OF  LEASES,  ETC. 


*249 


*  Table  of  the  Value  of  Leases,  Estates    or   Annui-   [*249] 
TIES,  for  a  Numhkr   OF  Years  Certain,  to   make 

THE    FOLLOWING    RaTES    PER    CENT,     (o) . 


Years' 

Years' 

Years' 

Years' 

Years' 

Years' 

Years' 

Years' 

Years. 

Furch. 

Purch. 

Purch. 

Purch. 

Purcli. 

Purch. 

Purch. 

Purcli. 

at  3  per 

at  4  per 

at  5  per 

at  6  per 

at  7  per 

at  8  per 

at  9  per 

at  10  per 

cent. 

cent. 

cent. 

cent. 

cent. 

cent. 

cent. 

cent. 

^ 

1 

77 

1 

*- 

*- 

i- 

^- 

i- 

i- 

1 

1- 

1- 

1- 

1- 

1- 

1- 

1- 

1- 

2 

2- 

2- 

lf  + 

lf  + 

lf  + 

lf  + 

lf  + 

1    + 

3 

2f  + 

2f+ 

n- 

n~ 

n+ 

2i+ 

2f+ 

24r- 

4 

3f- 

H- 

3i+ 

u- 

34— 

3i  + 

31- 

H- 

5 

^+ 

^- 

4i+ 

4i- 

4  + 

4- 

4- 

H+ 

6 

5^- 

5i- 

5  + 

5- 

4f+ 

4i- 

4^  + 

4i  + 

7 

6i- 

6  + 

5f+ 

5^  + 

^- 

5i- 

5  + 

4i+ 

8 

7  + 

6f- 

6^- 

6i- 

6- 

5f- 

51+ 

5i  + 

9 

7i+ 

7i- 

7  + 

6f  + 

6i  + 

61- 

6- 

5f  + 

10 

8i  + 

8  + 

7f- 

7i+ 

7  + 

6|- 

H- 

6i- 

11 

9i  + 

8|  + 

8i+ 

8- 

7i- 

7i- 

6f+ 

H- 

12 

10- 

n- 

8i  + 

8^- 

8- 

7i+ 

7i+ 

6f+ 

13 

lOf- 

10- 

9^- 

8f+ 

8i+ 

8- 

7i- 

7  + 

14* 

lli  + 

10^+ 

10- 

H+ 

8f- 

H- 

7t  + 

7i+ 

15 

12- 

11  + 

\0h- 

n- 

9  + 

H+ 

8  + 

7i  + 

16 

12^  + 

iif- 

\n+ 

10  + 

9tL- 

8f+ 

8R 

7f  + 

17 

13|- 

m- 

iii+ 

lOi^- 

9|  + 

9  + 

81  + 

8  + 

18 

13^-  + 

12f- 

iif- 

io|+ 

10+ 

9i+ 

8f  + 

8i- 

19 

Ui  + 

13i- 

12  + 

lU- 

101  + 

9i+ 

9  — 

8K 

20 

15- 

131+ 

12^- 

iii- 

10i+ 

9f  + 

91— 

8i  + 

2o 

17^- 

15^+ 

14  + 

12f+ 

llf- 

lOf- 

9f- 

9  + 

30 

19i-  + 

17i+ 

151  + 

13f+ 

121- 

1H  + 

lOK 

n- 

35 

2l|- 

18f- 

161  + 

14i- 

13- 

llf- 

10i+ 

n- 

40 

23  + 

19f+ 

17i- 

15  + 

131+ 

12- 

10|+ 

9f  + 

45 

m+ 

20f- 

17i^-  + 

15.V- 

134r  + 

12  + 

11- 

91  + 

50 

25f- 

2H- 

18i  + 

15f  + 

13f+ 

121- 

11- 

10- 

60 

27|- 

22i  + 

19- 

161— 

14- 

m- 

11  + 

10- 

70 

29  + 

231- 

19i  + 

16^- 

141  + 

124.- 

11  + 

10- 

80 

30i- 

24- 

191  + 

16i  + 

141- 

121- 

11  + 

10- 

90 

31  + 

24i+ 

19f  + 

16i  + 

141  + 

121- 

11  + 

10- 

100 

3U+ 

244  + 

19i  + 

16i  + 

141  + 

m- 

11  + 

10 

Per- 
petual 

33i  + 

25 

20 

161- 

14i  + 

121 

11  + 

10 

*  Example.  — A  lease  or  annuity  for  14  years,  to  make  5  per  cent.,  and  to 
get  back  the  principal,  is  worth  a  little  less  than  10  years'  purchase  of  the  clear 
annual  rent ;  at  3  per  cent.,  a  little  more  than  11|^  years'  purchase  ;  at  8  per 
cent.,  a  little  less  than  8^  years'  purchase;  and  so  on. 

(y)  Inwood,  Table  1. 

401 


*250     ASSIGNMENT,   BANKRUPTCY,   DEATH,    ETC.    [Ch.  VII.  S.  2. 

[*250]  *  Table  of  the  Present  Value  of  Reversions  in  Years' 
Purchase  (p). 

The  following  Table  shows  the  present  value  of  a  reversion  in 
years'  purchase  of  the  clear  annual  rent,  after  a  given  terra  not 
exceeding  60  years,  at  3,  4,  5,  6,  7,  8,  9  and  10  per  cent,  interest. 


After 
these 
Yeiirs. 

Years' 

Years' 

Years' 

Years' 

Years' 

Years' 

Years' 

Years' 

Purch. 

Purch. 

Purch. 

Purch. 

Purch. 

Purch. 

Purch. 

Purch. 

at  .3  per 

at  4  per 

at  5  per 

at  0  per 

at  7  per 

at  8  per 

at  9  per 

at  10  per 

cent. 

cent. 

cent. 

cent. 

cent. 

cent. 

cent. 

cent. 

1 

32i+ 

24  + 

19  + 

15f- 

131+ 

lli  + 

10^ 

9  + 

2 

m- 

23  + 

181- 

14i  + 

m- 

lOf- 

9i+ 

81  + 

3 

301  + 

221- 

101  + 

14- 

iif+ 

10- 

8i  + 

7^+ 

4 

29i  + 

21t+ 

16^- 

m- 

]0|  + 

H- 

7|  + 

6f+ 

5 

m+ 

20i  + 

15|- 

m- 

101- 

8i+ 

71- 

61- 

6 

28- 

19f  + 

15- 

iii 

9i+ 

7I+ 

6f- 

5|- 

7 

27  + 

19 

141- 

11+ 

9- 

7-1  + 

fi  + 

51- 

8 

26i  + 

181  + 

13^  + 

101- 

^+ 

6f+ 

5i+ 

4|- 

9 

25i  + 

17i+ 

13- 

9|+ 

7i+ 

61  + 

5  + 

^- 

10 

24f  + 

17- 

121  + 

9i+ 

7i+ 

5|  + 

i.3_ 
-4 

3f+ 

11 

24  + 

161- 

llf- 

8|  + 

6|+ 

51  + 

4i+ 

3i  + 

12 

23i- 

l'H+ 

lli- 

H+ 

5i+ 

5- 

4- 

31- 

13 

22f- 

15  + 

m+ 

'-H 

6- 

4^  + 

3^  + 

3- 

14* 

22  + 

14^- 

10  + 

n+ 

H+ 

4i+ 

31  + 

•;3_ 
-4 

lo 

2U- 

14- 

9i-  + 

H- 

4- 

3  + 

24- 

16 

20^  + 

13i+ 

91— 

6^  + 

4|  + 

3|- 

2f  + 

2i- 

17 

20i- 

12f  + 

8f- 

6i- 

4i+ 

3i- 

2i+ 

2- 

18 

m-h 

121+ 

8R 

5f+ 

41- 

31- 

21  + 

1|  + 

19 

19 

llf  + 

8- 

5i+ 

4- 

3- 

2-1- 

n- 

20 

m- 

IH- 

H+ 

5i- 

3f- 

2f- 

2- 

H- 

2.5 

16- 

9^- 

6- 

3|  + 

2f- 

lf  + 

11  + 

1- 

30 

13f- 

n- 

4f- 

3- 

2- 

H- 

-H 

i+ 

35 

11|+ 

6H 

3f- 

n- 

U-+ 

1+ 

i+ 

i+ 

40 

10|- 

H- 

2f  + 

H-+ 

1- 

i+ 

i+ 

i- 

45 

8^-  + 

4K 

^- 

11- 

3  

4 

i- 

i- 

1- 

50 

H  + 

u+ 

ii- 

1- 

i- 

1-f- 

i+ 

1^-+ 

55 

H  + 

3- 

i-K 

3 

4 

^  + 

i-+ 

tV- 

yV+ 

60 

5J- 

2i- 

1  + 

i  + 

i- 

J  _ 

1 

1 

Ttfr 

*  ExAMPLK.  —  A  reversion  of  an  estate  after  a  14  years'  term,  is  worth  in 
present  money,  at  5  per  cent.,  a  little  more  than  10  years'  purchase  of  the 
clear  annual  rent;  at  .3  per  cent.,  a  little  more  than  22  years'  purchase;  at 
8  per  cent.,  a  little  more  than  4\  years'  purchase;  and  so  on. 


(/O  Inwood,  Table  13. 

402 


Ch.  VII.  S.  2.]       COMPAKATIVE   VALUE   OF   ESTATES. 


^251 


*  Table  of  the  Comparative  Value  of  Lifehold  and    [*251] 
Leasehold  Estates   (q). 

The  following  Table  will  show  the  relative  value,  at  5  per  cent, 
interest,  of  estates  held  for  a  term  of  life,  or  for  a  term  of  years 
certain. 


Age. 

Equal  to  a  Leaseliold  Estate  for  a  Term  certain. 

One  Life. 

Two  joint 
Lives. 

Longest  of 
Two  Lives. 

Longest  of 
Three  Lives. 

10 

20 

30* 

40 

50 

60 

70 

Years. 
29 

25 

21 

18 

15 

11 

7 

Years. 
21 

17 

15 

12 

10 

7 
4 

Years. 
43 

37 

33 

27 

22 

16 

11 

Years. 
51 

46 

39 

32 

26 

19 

13 

*  Example.  —  An  estate  held  on  a  single  life,  aged  30,  is  equal  in  value  to 
a  leasehold  estate  for  a  term  certain  of  21  years,  at  5  per  cent. ;  one  on  two 
joint  lives,  aged  30,  to  a  term  certain  of  15  years ;  one  on  the  longest  of  two 
lives,  aged  30,  to  a  term  certain  of  33  years ;  and  one  held  on  the  longest  of 
three  lives,  aged  30,  to  a  term  certain  of  39  years. 

(9)  Inwood,  Table  26. 
403 


'252    ASSIGNMENT,   BANKRUPTCY,   DEATH,   ETC.     [Ch.  VII.  S.  3. 


[*252]        *  Sect.  8.  —  Assignment  of  Reversion. 

Right  of  assignee  to  sue  for  breach  of  covenant.  —  A  lessor 
may  by  deed  assign  his  reversion.^  At  common  law  such  an 
assignment  would  only  have  given  the  assignee  a  right  to  the 
rent  reserved,  to  distrain  for  rent,  and  to  sue  for  breaches  of 
covenants  at  law,  but  not  for  breaches  of  express  covenants 
entered  into  by  the  lessee  with  the  lessor  (r).  To  remedy 
this,  the  statute  32  Hen.  8,  c.  34,  enacted  that  all  grantees  of 
reversions  should  enjoy  all  the  advantages,  benefits  and  rem- 
edies by  entry  for  non-payment  of  rent,  or  for  doing  of  waste 
or  other  forfeiture  (s),  or  by  action  only  for  non-performance 
of  conditions,  covenants  or  agreements,  contained  or 
expressed  in  leases,  which  the  lessors  themselves  had  or 
enjoyed. 

(r)  Martyn  v.  Williams,  1  H.  &  N.  (s)  Bennett   i\   Herring,  3   C.   B., 

817,  826;  26  L.  J.,  Ex.  117.  N.  S.  370. 

1  Assignment  of  reversion,  (r?)  How  made.  —  See  note,  sec.  1.  It  takes 
effect  from  delivery.     Meagher  v.  Coleman,  1  Russ.  &  Geld.  (N.  S.)  271. 

(6)  A  deed  or  other  assignment  is  subject  to  the  lease.  Page  v.  Esty,  54  Me. 
819  ;  Ala.  Gold  Life  Ins.  Co.  v.  Oliver,  78  Ala.  158;  Comer  v.  Sheelian,  74  Id. 
452,457;  Casey  i'.  Gregory,  13  B.  Mon.  (Ky.)  505,  507  (per  Simpson,  J.). 
A  demise  for  ninety-nine  years  operates  as  an  assignment  of  the  reversion  of 
a  prior  shorter  lease.     Doe  d.  Jarvis  v.  M'Carthy,  3  Kerr  (N.  B.)  63. 

(c)  Effect.  —  Assignment  transfers  to  assignee  the  right  to  rent  sub- 
sequently accruing,  Abercrombie  v.  Redpath,  1  Iowa,  111;  Disselhorst  v. 
C.idogan,  21  111.  App.  179;  Dixon  v.  NiccoUs,  39  111.  372;  Burden  v.  Thayer, 
3  Met.  (Mass.)  76;  Howland  v.  Coffin,  12  Pick.  (Mass.)  125;  Van  Driei  v. 
Rosierz,  26  Iowa,  575  ;  Townsend  v.  Isenberger,  45  Id.  670  ;  Burns  v.  Cooper, 
31  Pa.  St.  426;  though  it  be  involuntary  as  in  case  of  judicial  proceedings, 
Lancashire  v.  Mason,  75  N.  C.  455;  Epley  v.  Eubanks,  11  111.  App.  272; 
Bank  of  Penn.  v.  Wise,  3  Watts  (Pa.)  394 ;  McDevitt  v.  Sullivan,  8  Cal.  592 ; 
Martin  v.  Martin,  7  Md.  368;  or  purely  by  operation  of  law,  as  in  case  of 
heirs,  Crosby  r.  Loop,  13  111.  625;  Green  v.  Massie,  Id.  363;  Foltz  v.  Prouse, 
17  Id.  487;  Kimball  r.  Sumner,  62  Me.  305;  Stinson  u.  Stinson,  38  Id.  593; 
Haslage  v.  Krugh,  25  Pa.  St.  97.  A  devisee,  also,  is  entitled  to  subsequently 
accruing  rent.     Cobel  v.  Cobel,  8  Barr  (Pa.)  342. 

Kent  accrued,  payable  prior  to  assignment,  does  not  pass  to  assignee  as  it  is 
a  chose  in  action.  Wittrock  v.  Ilallinan,  13  Q.  H.  U.  C.  135  ;  Burden  n.  Thayer, 
3  Met.  (Mass.)  76;  Sheerer  i;.  Stanley,  2  Kawle  (Pa.)  276;  Bank  of  Pa.  v. 
Wise,  3  Watts  (Pa.)  394  ;  Braddee  v.  Wiley,  10  Id.  362 ;  Farmers  &  Mechan- 
ics' Bank  v.  Egc,  9  M.  436. 

(d)  Conditional  assii/nment.  —  The  reversion  may  be  assigned  as  security  as 
rn  mortgage.  Payment  of  debt  will  discharge  the  assignment.  Handershott 
V.  Calhoun,  17  III.  App.  163. 

404 


Cii.  VII.  S.  3.]  ASSIGNMENT    OF    REVERSION.  *253 

Lease  must  be  by  deed.  —  This  statute  does  not  apply  where 
the  demise  is  not  by  deed(^).  If  the  demise  be  otherwise 
than  by  deed,  the  lessor,  notwithstanding  assignment  of  the 
reversion,  retains  his  right  of  action  (m). 

But  not  under  Conveyancing  Act.  —  The  10th  and  11th  sec- 
tions of  the  Conveyancing  and  Law  of  Property  Act,  how- 
ever (.-c),  which  otherwise  appear  to  re-enact  32  Hen.  8,  c.  34, 
ss.  1  and  2,  apply  to  leases  generally  and  are  not  confined  to 
leases  by  deed. 

Reversion  must  be  the  same.  —  To  enable  the  assignee  of  a 
reversioner  to  sue  on  the  covenants  in  a  lease,  he  must  be 
seised  of  the  same  reversion  to  which  the  covenants  were 
originally  annexed;  therefore,  where  there  was  a  lease  for 
years,  under  which  the  tenant  entered,  but  which  was  never 
executed  by  the  lessor,  who  died  and  devised  the  property, 
it  was  held,  that  the  devisee  could  not  sue  as  assignee  of  the 
reversion  for  breaches  of  covenants  in  the  lease  (3/).  A 
lease  was  made  by  A.  and  B.  his  wife,  who  were  seised  of  an 
undivided  moiety  in  right  of  the  wife,  and  also  by  C,  who 
was  seised  of  the  other  undivided  moiety,  and  it  contained  a 
covenant  by  the  lessee,  with  A.  and  C.  only,  to  repair; 
semble,  that  this  was  not  a  covenant  running  with  the  land 
on  which  the  assignee  of  the  reversion  could  sue  (s).  The 
assignee  of  a  rent  reserved  by  deed  (without  being  an 
assignee  of  the  reversion,  if  any),  may  maintain  an  action 
for  the  rent  which  becomes  due  after  the  assignment  (a). 

Assignment  with  reservation  of  rent  to  assignor.  —  In   South- 
well V.  Scotter  (5),  it  was  doubted  whether,  by  the  peculiar 
form  of  words  there  used,  the  assignor  of  a  reversion  could 
bind  the  lessee  by  a  stipulation  in  the   assignment 
that  rent  could  continue  to  *  be  paid  to  the  assignor,   [*253] 


(t)  Standen  v.  Christmas,  10  Q.  B.  W.  120  ;    Thompson  v.   Hakewill,  19 

35 ;  Elliott  v.  Johnson,  L.  R.,  2  Q.  B.  C.  B.,  N.  S.  717  ;  35  L.  J.,  C.  P.  18. 
120;  36  L.  J.,  Q.  B.  41 ;  8  B.  &  S.  .38.  (a)  Williams  v.  Hayward,  1  E.  & 

(u)  Bickford  w.  Parson,  5  C.  B.  920.  E.  1040;  28  L.  J.,  Q.  B.  374;  Allen 

(x)   See    these  sections  at  length,  v.  Bryan,  5  B.  cfe  C.  512;   Robins  v. 

p.  256,  post.  Cox,  1  Lev.  22  ;  Newcomb  v.  Harvey, 

(y)  Cardwell  v.  Lucas,  2  M.  &  W.  Carth.  161. 
Ill ;  Cooch  V.  Goodman,  2  Q.  B.  580.  (6)  49  L.  J.,  Ex.  356. 

(2)  Wootton  V.  Steffenoni,  12  M.  & 

405 


*2o3     ASSIGNMENT,    BANKRUPTCY,    DEATH,    ETC.    [Ch.VII.  S.  3. 

and  it  is  very  cloabtful  whether  such  an  obligation  (unless 
construed  as  an  obligation  to  pay  to  the  assignor  as  agent 
of  the  assignee)  could  be  created  by  any  form  of  words 
whatever.  Such  a  stipulation  seems  to  be  repugnant  to  the 
assignment  of  a  reversion,  the  very  essence  of  which  is  that 
the  assignee  should  stand  to  the  lessee  in  the  place  of  the 
assignor,  whereas  such  a  stipulation  makes  practically  two 
landlords.^ 

Dispute  of  title  of  assignee  by  tenant.  —  The  rule  that  a  ten- 
ant may  not  dispute  his  landlord's  title  (^)  applies  only  to 
the  title  of  the  original  landlord  who  let  him  in,  and  not  to 
that  of  an  assignee  of  the  reversion  (c?),  and  such  title  may 
be  disputed  by  a  tenant.  But  if  the  tenant  has  paid  rent  to 
a  claiming  assignee  of  the  reversion  or  his  agent,  such  pay- 
ment is  prim^  facie  evidence  of  the  title  of  such  assignee, 
and  the  tenant,  except  in  a  case  of  fraud  or  misrepresenta- 
tion, can  only  defeat  that  title  by  showing  that  he  paid  in 
ignorance,  and  that  some  third  person  is  the  real  assignee  of 

(c)  Cooke  I'.  Loxley,  5  T.  R.  4,  ante,  (d)  Carlton  v.  Bowcock,  51  L.  T. 

ch.  V.  s.  22.  659,  pei-  Cave,  J. 

1  Rent  severable  from  reversion.  —  "  Each  .  .  .  may  be  assigned  with- 
out the  other"  (per  Clopton,  J.,  in  Ahi.  Gold  Life  Ins.  Co.  v.  Oliver,  78  Ala. 
158,  160). 

In  Crosby  v.  Loop,  13  111.  625,  it  was  held  that  lessor  might  assign  part  of 
reversion,  reserving  to  himself  the  entire  rent. 

In  New  York  the  assignee  of  rent,  without  the  reversion,  may  sue  therefor 
in  his  own  name.  Demarest  v.  Willard,  8  Cow.  (N.  Y.)  206 ;  Willard  v.  Till- 
man, 2  Hill  (N.  Y.)  274,  276. 

In  Hopkins  v.  Hopkins,  3  Ont.  223,  230,  it  was  said  (per  Boyd,  C.)  that 
aecruing  rent  might  be  granted  by  deed  or  devised  by  will,  and  the  devisee 
might  distrain  for  it. 

In  Watson  u.  Hunkins,  13  Iowa,  547,  550,  it  was  held  that  lessor  might 
assign  the  lease  without  the  rent. 

It  is  held  in  Alabama  tliat  a  note  given  for  rent  in  advance  will  sever  it 
from  the  reversion.  Westmoreland  v.  Foster.  60  Ala.  448,  455  ;  Ala.  Gold 
Life  Ins.  Co.  v.  Oliver,  78  Ala.  158,  161. 

If  rent  be  payable  in  advance,  sale  of  land  after  such  payment  does  not 
entitle  vendee  to  re-collect  it.  Farmers  &  Mechanics'  Bank  v.  Ege,  9  Watts 
(Pa.)  436;  Stone  v.  Patterson,  19  Pick.  (Mass.)  476. 

In  Farley  v.  Thomjjson,  15  Mass.  18,  an  agreement  to  offset  future  rent 
payments  against  interest  instalments  was  belil  valid. 

A  purchas(!r  at  a  sale  under  a  i)rior  mortgage  may  collect  rent  over. 
McDevitt  V.    Sullivan,  8  Cal.  592. 

In  Ontario  it  is  lield  that  an  assignment  of  future  rent,  with  right  of  dis- 
trust, must  be  under  seal.     Gall)raitii  /•.  Irving,  8  Ont.  751. 

40(i 


Ch.  VII.  S.  3.]  ASSIGNMENT   OF   REVERSION.  *254 

the  reversion ;  it  is  not  enough  for  him   to  show   that  the 
cLaiming  assignee  has  no  title  (<3). 

Surrenderee  of  copyhold,  mortgagor,  &c.  —  The  surrenderee 
of  a  copyhokl  reversion  may  bring  covenant  against  the  lessee 
within  the  equity  of  the  statute  32  Hen.  8,  c.  34 ;  for  it  is  a 
remedial  law,  and  no  prejudice  can  arise  to  the  lord,  not- 
withstanding the  lessee  had  assigned  the  term  before  the 
surrender  (/). 

If  a  mortgagor  and  mortgagee  of  a  term  make  an  under- 
lease in  which  the  covenants  for  the  rent  and  rej)airs  are 
only  with  the  mortgagor  and  his  assigns,  the  assignee  of  the 
mortgagee  cannot  maintain  an  action  for  the  breach  of  these 
covenants,  because  they  are  collateral  to  his  grantor's  interest 
in  the  land,  and  therefore  do  not  run  with  it ;  but  the  mort- 
gagor himself  may,  the  covenants  being  in  gross  (^).  Where 
a  mortgagor  made  a  lease  for  a  term,  reciting  the  mortgage, 
and  the  lessee  covenanted  to  pay  a  certain  sum  annually  in 
part  of  the  interest  on  the  mortgage  at  a  certain  place,  it  was 
held  a  covenant  in  gross,  not  running  with  the  land  (A). 

On  a  covenant  to  repair,  tenants  in  common  may  sue  a 
lessee  of  a  house,  who,  after  the  demise,  but  before  the 
breach  alleged,  became  a  co-tenant  of  the  plaintiffs  in  the 
same  house  (/c). 

The  assignee  of  a  lease,  which  is  good  only  by  estoppel, 
may  maintain  an  action  on  the  covenants  (Z).  Where  a  per- 
son, who  was  in  fact  tenant  from  year  to  3^ear  (as  he 
held  under  a  void  lease  for  years),  underlet  *  by  deed  [*254] 
for  a  term,  and  the  under-lessee  again  underlet  by 
deed  for  a  less  term :  it  was  held,  that  this  under-lessee  had 
a  reversion  on  which  his  assignee  could  maintain  an  action 
of  covenant  (m).     After  assigning  over  a  lease,  the  assignor 

(e)  lb.  (/.)  Yates  v.   Cole,  2    Brod.   &   B. 

(/)  Glover  v.  Cope,  1  Salk.  185;  660;  Twynam  v.  Pickard,  2  B.  &  A. 

4   Mod.    81;    Whitton  v.   Peacock,  3  105;  Badeley  ;;.  Vigurs,  4  E.  &  B.  71 ; 

Myl.  &  II.  323.  Norval  v.  Pascoe,  34  L.  J.,  Ch.  82. 

(g)   Webb  v.  Russell,  3  T.  R.  393 ;  (/)   Cuthbertson  v.  Irving,  4  H.  & 

Stokes  V.  Russell,  Id.  679 ;  Russell  v.  N.  742  ;  6  Id.  135. 

Stokes  (in  error),  1  H.  Blac.  562.  (m)  Oxley  v.  James,  13  M.  &  W. 

(h)   Pargeter  ;:.  Harris,  7  Q.  B.  708 ;  209. 
Saunders  v.  Merryweather,  o  H.  &  C. 
902;  35  L.  J.,  Ex.  115. 

407 


*254     ASSIGNMENT,  BANKRUPTCY,   DEATH,   ETC.    [Ch.  VII.  S.  3. 

having  no  reversion  cannot  sue  the  assignee  except  on 
express  covenants  contained  in  the  assignment  (72). 

Breaches  before  assignment.  —  The  assignee  of  a  reversion 
has  no  right  of  action  for  arrears  of  rent  due  (0),  inasmuch 
as  the  right  to  rent  is  a  chose  in  action,^  or  for  breaches  of 
covenants,  although  running  with  the  land,  committed  before 
the  assignment  of  the  reversion  (jo) ;  but  the  assignor  may 
sue  for  such  j)revious  breaches  notwithstanding  the  assign- 
ment. Where  a  mortgagor  of  a  term  of  years  made  an 
under-lease  by  indenture,  this,  though  at  first  a  lease  by 
estoppel,  was  held  to  be  convertible  into  a  lease  in  interest 
by  a  re-conveyance  by  the  mortgagees,  so  as  to  give  a  right 
of  action  to  the  assignees  of  the  lessee  on  the  covenants  in 
the  under-lease  (g-). 

Notice  to  tenant  before  re-entry.  —  The  assignee  of  a  rever- 
sion may  re-enter  for  breach  of  covenants,  other  than  the 
covenant  to  paj'  rent,  without  giving  notice  to  the  tenant 
that  the  reversion  has  been  assigned  to  him  (r).  As  regards 
rent,  it  is  expressly  provided  b}^  4  Ann.  c.  16,  s.  10,  that  the 
tenant  is  not  to  be  prejudiced  without  notice. 

The  grantee  of  a  reversion,  therefore,  may  take  advantage 
of  all  covenants  which  run  with  the  land  (s).  The  remedy  is 
mutual,  for  the  same  statute  gives  the  lessee  a  right  of  action 
against  the  grantee  of  the  reversion  (^).  The  statute  does 
not  extend  to  mere  collateral  covenants  (?/)  ;  but  it  includes 
devises  (a;). 

How  assignments  made.  —  An  assignment  of  the  rever- 
sion must  be  by  deed  (2/)-^     A.  let  a  house  to  B.,  as  ten- 

(n)   Hicks  v.  Downing,  1  Ld.  Raym.  under  tlie  Conveyancing  Act  (see  p. 

99;  1  Salk.  13.  328)  is  of  course  necessary. 

(0)  Flight  V.  Bcntlcy,  7  Sim.  149.  .  (.s)   Spencer's  case,  1  Sin.  L.  C.  60, 

(;))   Martyn  v.  Williams,  1  H.  &  N.  niitr,  1()3. 
817;  26  L.  J.,  Ex.  117.  (/)  Jourdain  r.  Wilson,  4  B.  &,  A. 

(7)   Webb   V.   Austin,    7    M.   &  G.  206. 
701.  (u)   Webb  V.  Russell,  :!  T.  R.  393. 

(r)   Scaltock   r.   Ilarston,  L.  R.,  1  (.r)   ISIacliell  c.  Dunton,  2  Leon.  33. 

C.  P.  D.  10(5;  45  L.  J.,  C.  P.  125;  34  (.'/)   Beely  v.    Perry,   3    Lev.    155; 

L.  T.    130;    .34   W.    R.   431.      Notice  Brawley  i>.  Wade,  M'Clel.  664. 

^  Rent  in  arrears.  —  See  nntr,  note  ujion  "  Assignment  of  Reversion." 
2  Not  always  in  tiie  L'nited  States.     A  reversion  may  bu  less  tlian  a  free- 
hold.    Sec  ante,  notes  to  this  section  and  section  1. 

408 


Cn.  VII.  S.  3.]  ASSIGNMENT   OF   REVERSION.  *255 

ant  from  year  to  3^ear,  and  afterwards  granted  a  lease  by 
deed  to  C.  of  the  house  for  tAventy-one  years  :  this  was  held 
to  transfer  the  reversion  to  C,  and  to  disentitle  A.  to  recover 
from  B.  any  rent  which  accrued  during  C.'s  lease  (z).  A 
conveyance  in  fee,  whether  absolutely  or  by  way  of  mort- 
gage, will  pass  a  term  which  has  been  carved  out  of  it,  and 
afterwards  re-assigned  to  the  grantor,  subject  to  a  sub- 
lease (a). 

Effect  of  mortgage  of  reversion.  —  Mortgages  subsequent  to 
a  lease  operate  as  grants  of  the  reversion,  and  carry  with 
them,  as  incidental  to  such  reversion,  a  right  to  the 
*rent  and  the  benefit  of  the  laiullord's  remedies  for  [*255] 
the  recovery  (6).  The  mortgagee,  therefore,  may 
enforce  the  payment  of  the  rent  from  the  lessee  either  by  dis- 
tress or  action  ;  and  the  lessee  will  be  exonerated  by  such  pay- 
ment from  any  demand  on  the  part  of  the  mortgagor  or  those 
claiming  under  him ;  even  though  actual  compulsion  on  the 
part  of  the  mortgagee  has  not  been  resorted  to,  but  the  lessee 
has  paid  the  rent  voluntarily  (c). 

Payment  of  rent.  —  Payment  of  rent  to  the  mortgagor  with- 
out notice  of  the  mortgage  is  valid  (c?),  but  payment  of  rent 
in  advance  is  not  within  this  rule,  so  as  to  discharge  a  tenant 
who  had  notice  of  the  mortgage  before  the  rent  was  due,  for 
a  payment  of  rent  in  advance  is  merely  a  loan  by  the  tenant 
to  the  landlord  (e).  A  payment,  however,  is  a  payment  of 
rent  when  the  rent  falls  due,  and  becomes  irrecoverable  by  the 
mortgagee  so  far  as  it  is  made  in  respect  of  rent  due  before 
the  notice  (/).  It  is  not  necessary  that  the  notice  should 
be  in  terms ;  it  is  sufficient  that  the  mortgage  should  be 
brought  to  the  mind  of  the  tenant  ((/). 


{z)  Harmer  v.  Bean,  3  C.  &  K.  307  ;  (J)  4  Ann.  c.  16,  s.  10. 

Burrows  v.  Gradin,  1   D.  &  L.  213;  (e)   Do  Nicolls  v.  Saunders,  L.  R., 

post.    Sect.   5;    but    see   Edwards   v.  5  C.  P.  58;  39  L.  J.,  C.  P.  297;  22 

Wickwar,  L.  R.,  1  Eq.  403.  L.  T.  6G1  ;  18  W.  R.  1106. 

(a)  Burton  c.  Barclay,  7  Bing.  745.  (/)  Cook  v.  Guerra,  L.  R.,  7  C.  P. 

[h)  Ante,  51.  132;  41  L.  J.,  C.  P.  89;  26  L.  T.  97; 

(c)  Moss  V.  Gallimore,  1  Doug.  279;  20  W.  R.  367. 

1  Smith  L.  C.  029  (7th  ed.).  {g)  Id. 

409 


*255     ASSIGNMENT,   BANKRUPTCY,   DEATH,   ETC.    [Ch.  VII.  S.  4. 


Sect.  4.  —  Severance  of  Reversion. 

Assignee  of  reversion  of  part.  —  All  assignee  of  the  rever- 
sion of  part  of  the  demised  premises  can  sue  for  apportioned 
rent  at  common  law  (^^),  ^  and  could  always,  under  the  stat- 
ute 32  Hen.  8,  c.  34,  sue  for  breach  of  the  covenants  respect- 
ing that  part  (A),  and  so  might  an  assignee  of  part  of  the 
reversion  (Jili). 

Assignee  of  part  of  reversion.  —  Where  a  lease  of  an  undi- 
vided part  of  certain  mines  contained  a  recital  of  an  agree- 
ment between  the  lessee,  the  lessor,  and  the  owners  of  the 
other  two-thirds,  for  pulling  down  an  old  mill,  and  building 
another  of  larger  dimensions,  and  the  lease  contained  a  cove- 
nant to  keep  such  new  mill  in  repair,  and  so  leave  it  at  the 
end  of  the  term,  but  did  not  contain  a  covenant  to  build,  it 
was  held  that  the  assignee  of  the  lessor  of  the  one-third 
might  sue  in  respect  of  his  interest  (/). 

{gg)  As  to  mode  of  apportionment,  (A)   Co.    Litt.    315   a ;   Tvvynam   v. 

see  post,  Ch.  X.,  Sect.  6;  and  for  an  Pickard,  2  B.  &  A.  105  (covenant  to 

instance  of  the  rare  action  for  appor-  repair)  ;    Badeley  v.  Vigurs,  4    E.  & 

tionment  see  Burgojne  v.  Ainsworth  B.  71  (covenant  to  leave  in  repair). 

{Law  Times   newspaper  for  October  {lih)   Attoe  v.  Hemniings,  2  Bulst. 

10th,  1885),  in  which  case  tlie  action  281. 

was  brought  in  the  Brompton  County  (/)   Easterby  v.  Sampson,  6  Bing. 

Court.  644;  4  M.  &  P.  001  (Exch.  Ch.). 

1  Severance  of  reversion.  —  («)  How  effected.  —  A  severance  of  reversion 
is  effected  by  conveyance  of  a  single  portion  of  demised  premises,  Keeve 
V.  Thompson,  14  Ont.  499;  Worthington  v.  Cooke,  50  Md.  51;  Reed  v.  Ward, 
22  Pa.  St.  144  ;  or  separate  assignments  of  different  portions,  Babcock  r. 
Scoville,  56  111.  4G1  ;  Van  Rensselaer  v.  Bradley,  3  Denio  (N.  Y.)  135  ;  Van 
Rensselaer's  Ex'rs  v.  Gallup,  5  Id.  454;  or  by  surrender  to  lessor  of  part  of 
demised  premises,  Blake  v.  Sanderson,  1  Gray  (Mass.)  3.32. 

(b)  Consequences. —  And  after  severance  the  lessor  and  assignees  may  recover 
each  his  proportionate  part  of  the  rent,  as  ascertained  by  a  jury,  according  to 
the  value  of  each  assignee's  interest.  See  above  cases,  and  Boulton  v.  Blake, 
12  Ont.  522,  538. 

If  tlie  rent  be  of  a  nature  indivisible,  it  is  extinguislied.  The  lessor  cannot 
throw  entire  Ijurden  upon  one  ])art.  A  rent  item  of  a  day's  service  with  horse 
and  carriage  was  held  extinguished,  in  Van  Rensselaer  ;;.  Bradley,  3  Dcnio 
(N.  Y.)  135,  141,  142.  Justice  .lewett  said  the  effect  of  partial  assignment 
by  the  lessee  would  be  to  multiply  the  service. 

In  lU'ctor  V.  Bacon,  0  Allen  (N.  B.)  1.34,  it  was  held  that  the  lessor  could 
not  maintain  covenant  for  a  portion  of  the  rent,  the  covenant  being  entire. 

It  is  well  settled,  however,  tliat  lie  may  recover  his  proportion  of  the  rent. 
Worthington  v.  Cook,  50  Md.  51. 

410 


Ch.  VII.  S.  4.]  SEVERANCE   OF   REVERSIOISr.  *256 

But  it  was  held  that  the  assignee  of  the  reversion  of  part 
could  not  take  advantage  of  a  condition  broken^  though  an 
assignee  of  part  of  the  reversion  in  the  whole  property 
might  (/c). 

Apportionment  of  condition  for  re-entry.  —  It  has  since  been 
enacted  by  22  &  23  Vict.  c.  ^5,  s.  3,  "  that  where  the 
reversion  upon  a  *  lease  is  severed,  and  the  rent  or  [*256] 
other  reservation  is  legally  apportioned,  the  assignee 
of  each  part  of  the  reversion  shall,  in  respect  of  the  appor- 
tioned rent  or  other  reservation  allotted  or  belonging  to 
him,  have  and  be  entitled  to  the  benefit  of  all  conditions 
or  powers  of  re-entry  for  non-payment  of  the  original  rent 
or  other  reservation,  in  like  manner  as  if  such  conditions  or 
powers  had  been  reserved  to  him  as  incident  to  his  part  of 
the  reversion  in  respect  of  the  apportioned  rent  or  other 
reservation  allotted  or  belonging  to  him." 

The  passing  of  the  benefit  and  burden  of  covenants  and 
conditions  to  the  several,  assignees  of  a  several  reversion  in 
the  case  of  a  lease  after  tliat  act  is  provided  for  by  ss.  10-12 
of  the  Conveyancing  and  Law  of  Property  Act,  1881,  44  & 
45  Vict.  c.  41,  as  follows :  — 

Sect.  10.  Rent  and  benefit  of  lessee's  covenants.  — "  (^1). 
Rent  reserved  by  a  lease  and  the  benefit  of  every  covenant 
or  provision  therein  contained  having  reference  to  the  sub- 
ject-matter thereof,  and  on  the  lessee's  part  to  be  observed 
or  performed,  and  every  condition  of  re-entry  and  other  con- 
dition therein  contained,  shall  be  annexed  and  incident  to 
and  shall  go  with  the  reversionary  estate  in  the  land,  or  in 
any  part  thereof,  immediately  expectant  on  the  term  granted 
by  the  lease,  notwithstanding  severance  of  that  reversionary 
estate,  and  shall  be  capable  of  being  recovered,  received, 
enforced,  and  taken  advantage  of  by  the  person  from  time 
to  time  entitled,  subject  to  the  term,  to  the  income  of  the 
whole  or  any  part,  as  the  case  may  require,  of  the  land  leased. 

(2).  This  section  applies  only  to  leases  made  after  the 
commencement  of  this  act." 

Sect.  11.   Obligation  of  lessor's  covenants.  —  "  (1).    The  obli- 

Qc)  Wright  v.  Burroughs,  3  C.  B.685;  4  D.  &  L.  438. 

411 


*257     ASSIGNMENT,    BANKRUPTCY,    DEATH,    ETC.     [Ch.  VII.  S.  4. 

gation  of  a  covenant  entered  into  by  a  lessor  with  reference 
to  the  subject-matter  of  the  lease  shall,  if  and  as  far  as  the 
lessor  has  power  to  bind  the  reversionary  estate  immediately 
expectant  on  the  terra  granted  by  the  lease,  be  annexed  and 
incident  to  and  shall  go  with  that  reversionarj^  estate,  or 
the  several  parts  thereof  notwithstanding  severance  of  that 
reversionary  estate,  and  may  be  taken  advantage  of  and 
enforced  by  the  person  in  whom  the  term  is  from  time  to 
.time  vested  by  conveyance,  devolution  in  law,  or  otherwise; 
and  if  and  as  far  as  the  lessor  has  power  to  bind  the  person 
from  time  to  time  entitled  to  that  reversionary  estate,  the 
obligation  aforesaid  may  be  taken  advantage  of  and  enforced 
against  any  person  so  entitled. 

(2).  This  section  applies  only  to  leases  made  after  the 
commencement  of  this  act." 

Sect.  12.  Apportionment  on  severance  of  every  condition. — 
"(1).  Notwithstanding  the  severance  by  conveyance,  surren- 
der or  otherwise,  of  the  reversionary  estate  in  any  land  com- 
prised in  a  lease,  and  notwithstanding  the  avoidance  or  cessor 
in  any  other  manner  of  tlie  term  granted  by  a  lease  as 
[*257]  to  part  only  of  the  land  comprised  therein,  *  every 
condition  or  right  of  re-entry,  and  every  other  con- 
dition, contained  in  the  lease,  shall  be  apportioned,  and  shall 
remain  annexed  to  the  severed  parts  of  the  reversionary 
estate  as  severed,  and  shall  be  in  force  with  respect  to  the 
term  whereon  each  severed  part  is  reversionary,  or  the  term 
in  any  land  which  has  not  been  surrendered,  or  as  to  which 
the  term  has  not  been  avoided  or  lias  not  otherwise  ceased, 
in  like  manner  as  if  the  land  comprised  in  each  severed  part, 
or  the  land  as  to  which  the  term  remains  subsisting,  as  the 
case  may  be,  had  alone  originally  been  comprised  in  the 
lease. 

(2).  This  section  applies  only  to  leases  made  after  the 
commencement  of  this  act." 

It  will  have  been  observed  that  none  of  these  three  sec- 
tions are  retrospective,  but  that  they  all  apply  only  to  leases 
made  after  the  commencement  of  the  Act,  i.e.  by  s.  2,  on  or 
after  the  1st  January,  1882.  Only  the  12th  section,  how- 
ever, effects  any  considerable  alteration  of  tlie  law.     That 

412 


Ch.  VII.  S.  5.]  ASSIGNMENT    OF   TERM.  *257 

section  goes  beyond  22  &  23  Vict.  c.  85,  s.  3,  in  its  applica- 
tion to  all  other  conditions  in  addition  to  the  condition  of 
re-entry  for  non-payment  of  rent,  and  to  severance  "by  sur- 
render or  otherwise  "  in  addition  to  severance  by  conveyance  ; 
and  it  also  appears  to  dispense  with  the  necessity  of  the  rent 
having  been  apportioned  before  action  of  ejectment  for  non- 
payment of  rent.  The  only  alteration  effected  by  the  10th 
and  11th  sections  is  that  they  apply  to  leases  generally, 
whereas  32  Hen.  8,  c.  34,  applied  to  leases  by  deed  only. 


Sect.  '5.  —  Assignment  of  Term. 
(a)  Absolutely . 

Power  to  assign.  —  Every  tenant,  except  a  tenant  on  suffer- 
ance, has  power  to  assign  his  term,  unless  he  be,  as  is  fre- 
quently the  case  (T),  expressly  prohibited  in  the  contract  of 
tenancy  from  doing  so.^ 

An  assignment  by  a  tenant  at  will  determines  the  tenancy,^ 
but  not  without  notice  to  his  landlord  (m). 

"What  amounts  to  an  assignment.  —  An  assignment  must  be 
by  deed  (»?),  ^  and  must  pass  the  legal  estate  of  the  assignor ; 
for  a  transfer  of  a  mere  equitable  interest  will  not  make  a 
man  liable  as  an  assignee.^  An  agreement  to  take  an  assign- 
ment of  a  lease,  followed  by  possession  on  the  part  of  the 
equitable  assignee,  is  not  sufficient  to  give  the  lessor  any 
right  to  sue  the  equitable  assignee  in  equity  on  the  cove- 
nants  in   the  lease  (o).     The  delivery  and  depositing  of  a 

(0  See  post,  Ch.  XVII.,  s.  2.  (o)  Cox  v.  Bishop,  8  De  G.,  M.  & 

(m)  Pinhorn  v.  Souster,  8  Ex.  763.        G.  815;  26  L.  J.,  Ch.  389. 
(«)  8  &9  Vict.  c.  106,  s.  3  ;  ante,  240. 

1  Robinson  v.  Perry,  21  Ga.  183 ;  Cooney  v.  Hayes,  40  Vt.  478,  482. 

-  It  is  non-assignable.  Cunningham  v.  Holton,  55  Me.  33 ;  Dingley  v. 
Buffum,  57  Mo.  381 ;  Whitteniore  v.  Gibbs,  24  N.  H.  484. 

3  An  assignment  must  be  of  equal  solemnity  with  the  lease,  but  otherwise, 
in  majority  of  states,  need  not  be  by  deed.  In  the  provinces  it  must  be, 
except  for  the  limited  periods.     See  ante,  sec.  1,  note. 

*  The  contrary  has  been  held  in  several  New  York  cases  cited  in  note  to 
sec.  1. 

413 


*258    ASSIGNMENT,   BANKRUPTCY,    DEATH,   ETC.     [Ch.  VII.  S.  5. 

lease  as  a  security  for  money,  without  any  written 
[*  258]  *  assignment,  passes  no  interest  at  law,  although  it 

may  create  a  right  which  may  be  enforced  in  equity 
(p)  ;  but  the  transfer  may  be  complete,  although  the  assignee 
has  never  in  fact  got  possession  of  the  deed  of  assignment, 
by  reason  of  a  claim  of  lien  on  the  part  of  the  assignor's 
attorney  for  the  expense  of  preparing  it  (9'). 

An  assignment,  as  contradistinguished  from  a  sub-lease,  sig- 
nifies a  parting  with  the  whole  term  ;  ^  and  when  the  whole 

{p)  Doe  (/.  Maslin  ?'.  Roe,  5  Esp.  (9)  Odell  v.  Wake,  3  Camp.  394, 

105 ;  Williams  v.  Evans,  23  Beav.  239. 

1  Assignment  distinguished  from  sub-lease.  —  An  assignment  is  a 
transfer  of  entire  term,  Bedford  v.  Terhune,  30  N.  Y.  453  ;  Ind.,  &c.,  Union 
V.  Cleveland  R.  R.  Co.,  45  Ind.  281  ;  Smiley  v.  Van  Winkle,  G  Cal.  (iOS  ;  Blu- 
menberg  v.  ]\Iyres,  32  Id.  93;  and,  a  fortiori,  a  transfer  for  more  than  the  term 
is  an  assignment,  Langford  v.  Selmes,  3  Kay  &  Johns.  220  ;  Stewart  v.  Long 
I.  R.  R.  Co.,  102  N.  Y.  601 ;  Selby  v.  Robinson,  15  C.  P.  U.  C.  370. 

A  transfer  of  part  of  premises  is  an  assignment.  Prescott  v.  De  Forest,  16 
Johns.  (N.  Y.)  159  ;  WoodhuU  v.  Rosenthall,  61  N.  Y.  383  ;  Van  Rensselaer's 
Ex'rs  V.  Gallup,  5  Denio  (N.  Y.)  454  ;  Lee  v.  Payne,  4  Mich.  106  ;  Childs  v. 
Clark,  3  Barb.  Ch.  (N.  Y.)  52;  Cox  v.  Fenwick,  4  Bibb  (Ky.)  538. 

If  lessee  reserve  a  single  day,  transfer  is  a  sub-lease.  Van  Rensselaer's 
Ex'rs  17.  Gallup,  5  Denio  (N.  Y.)  454,  460  {per  Beardsley,  Ch.  J.)  ;  Davis  v. 
Morris,  36  N.  Y.  569.  If  lessee's  transfer  terminate  at  midnight  of  one  day, 
and  principal  lease  at  noon  of  next,  the  transfer  is  a  sub-lease.  People  v.  Rob- 
ertson, 39  Barb.  (N.  Y.)  9. 

A  transfer  of  entire  term,  with  covenant  to  surrender  to  lessee  at  expira- 
tion, is  a  sublease,  Piggot  ),".  Mason,  1  Paige  (N.  Y.)  412  ;  Post  v.  Kearney,  2 
N.  Y.  394;  Ganson  lO  Tifft,  71  N.  Y.  48,  54;  Collins  v.  Hasbrouck,  56  N^  Y. 
157,  162,  163  ;  Collamcr  r.  Kelley,  12  Iowa,  319,  323;  Stewart  v.  Long  I.  R.  R. 
Co.,  102  N.  Y.  601,  613  {per  Rapello,  J.),  the  theory  being  that  a  shred  of  the 
term  or  fraction  of  a  day  remained.  In  several  of  the  above  cases,  other  cove- 
nants were  combined  with  the  surrender  covenant,  and  the  dicta  is  rather  con- 
fusing. 

For  instance,  in  Piggot  )'.  Mason  and  Collamer  v.  Kelley,  there  was  a  reser- 
vation of  new  rent;  and  in  Ganson  i-.  Tifft,  there  was  a  covenant  for  re-entry 
and  conditional  right  to  surrender  during  term.  It  is  held  (probably  by  the 
weiglit  of  autJiority)  that  a  re-entry  clause  (alone)  will  not  prevent  a  transfer 
of  entire  period  from  being  an  assignnient,  Smiiey  v.  Van  Winkle,  6  Cal.  605; 
Stewart  v.  Long  I.  R.  R.  Co.,  102  N.  Y.  601,  (il3;  Lloyd  v.  Cozens,  2  Ashm. 
(Pa.)  131,  137,  138;  although  contrary  doctrine  was  laid  down  by  Justice 
Folger,  in  Collins  v.  Hasbrouck,  5f)  N.  Y.  157,  where  an  instrument  reserving 
different  rent  with  covenant  of  re-entry  was  licld  to  be  a  sub-lease. 

In  Hamilton  v.  Read,  13  Daly  (X.  Y.  Superior  Ct.)  436,  it  was  held  that 
an  instrument,  reserving  new  rent  was  a  stib-Iease,  but  this  is  ojiposed  to  the 
subsequent  dirfum  of  the  Court  of  Appeals  in  the  same  state,  in  Stewart  v. 
Long  I.  R.  R.  Co.,  102  N.  Y.  601,  613. 

414 


Cn.  VII.  S.  5.]  ASSIGNMENT   OF  TERM.  *258 

term  or  more  than  the  whole  term  is  made  over  by  the  les- 
see, although  in  the  deed  by  which  that  is  done  the  rent  and 
a  power  of  re-entry  for  non-payment  are  reserved  to  himself, 
and  not  to  the  original  lessor,  yet  the  instrument  amounts  to 
an  assignment,  and  not  a  sub-lease  (r),  and  in  such  case,  the 
person  to  whom  it  is  made  over  may  sue  the  original  lessor 
or  his  assignees  of  the  reversion,  or  be  sued  by  them  as 
assignee  of  the  term,  on  the  respective  covenants  in  the 
original  lease,  which  run  with  the  land,^  even  though  new 

(r)  Hicks  v.  Downing,  1  Ld.  Raym.  696;  WoUaston  v.  Hakewill,  3  M.  & 
99  ;  Palmer  ;;.  Edwards,  1  Doug.  187 ;  G.  297  ;  Langford  v.  Selmes,  3  Kay 
Thorn   v.  Wookombe,   3   B.   &   Ad.       &  J.  220. 

In  Stewart  v.  Long  I.  R.  R.  Co.,  while  the  court  admit  that  a  covenant  to 
surrender  will  ordinarily  prevent  the  transfer  from  being  an  assignment,  yet 
held  that  it  would  not  have  that  effect  in  that  case,  because  the  transfer  was 
for  more  than  the  term. 

They  also  held  that  the  term  did  not  merge  in  lessee's  future  possible  fee 
(under  covenant  to  purchase),  so  that  the  transfer,  of  more  than  the  term^ 
carried  all  that  he  then  had,  and  was,  therefore,  an  assignment. 

In  Linden  v.  Hepburn,  3  Sand.  (N.  Y.)  068,  670,  the  court  held  a  transfer 
with  covenant  for  re-entry  and  surrender  was  a  sub-lease  as  hetiveen  the  lessee 
and  his  transferee. 

1  Effect  of  assignment  of  term.  —  The  assignee  becomes  liable  directly 
to  the  lessor  upon  all  the  covenants  in  the  lease  which  run  with  the  land. 
Stewart  v.  Long  I.  R.  R.  Co.,  102  N.  Y.  601  ;  Cox  v.  Fenwick,  4  Bibb.  (Ky.) 
638;  Armstrong?'.  Wheeler,  9  Cow.  (N.  Y.)  88;  Babcock  v.  Scoville,  56  111. 
461 ;  Blake  v.  Sanderson,  1  Gray  (Mass.)  332 ;  Douglass  v.  Murphy,  16  Q.  B. 
U.  C.  113;  Selby  v.  Robinson,  15  C.  P.  U.  C.  370;  Smith  v.  Brinker,  17 
Mo.  148;  Salisbury  v.  Shirley,  66  Cal.  223;  Le  Gierse  v.  Green,  61  Tex.  128. 
Conrad  v.  Smith,  12  Pliila.  306;  Graves  v.  Porter,  11  Barb.  (N.  Y.)  692 1 
Negley  v.  Morgan,  46  Pa.  St.  281;  Hannen  v.  Ewalt,  18  Pa.  St.  9;  Overman 
V.  Sanborn,  27  Vt.  54  ;  McCormick  v.  Young,  2  Dana  (Ky.)  294. 

He  is  not  liable  for  breaches  committed  after  he  has  assigned,  Crawford  v. 
Bugg,  12  Ont.  8;  Boulton  v.  Blake,  Id.  532,  541  {per  Ferguson,  J.);  Magill 
V.  Young,  10  Q.  B.  U.  C.  301 ;  Walton  r.  Cronly,  14  Wend.  (N.  Y.)  63,  65 
{per  Sutherland,  J.)  ;  Hintze  v.  Thomas,  7  Md.  346  ;  nor  before  he  took  the 
assignment,  Johnston  v.  Bates,  48  N.  Y.  Superior  Ct.  180;  Thomas  v.  Connell, 
5  Pa.  St.  13;  but  only  for  those  committed  while  assignee  {per  Shaw,  C.  J., 
in  Patten  v.  Deshon,  1  Gray  (Mass.)  325,  329). 

The  lessee  continues  liable  upon  all  his  express  covenants,  and  he  is  virtu- 
ally a  surety  for  the  assignee,  Babington  v.  O'Connor,  20  L.  R.  Ir.  246; 
Greenleaf  v.  Allen,  127  Mass.  248;  Wilson  v.  Gerhardt,  9  Col.  585;  Wall  v. 
Hinds,  4  Gray  (Mass.)  256;  Boulton  v.  Blake,  12  Ont.  532;  Stinson  v.  Magill, 
8  Q.  B.  U.  C.  271;  Montgomery  r.  Spence,  23  Q.  B.  U.  C.  39;  Farmers' 
Bank  v.  Mut.  Asso.,  &c.,  4  Leigh,  69,  84  {per  Tucker,  J.)  ;  and  if  he  pay 
the  rent  he  has  a  remedy  over  against  the  assignee,  Lehman  v.  Dreyfus,  37 
La.  An.  687  ;  Fletcher  v.  M'Farlane,  12  Mass.  43;  and  also  against  an  assignee 
of  an  assignee,  Ashford  v.  Hack,  6  Q.  B.  U.  C.  641. 

415 


*258     ASSIGNMENT,    BANKRUrTCY,    DEATH,    ETC.     [Ch.  VII.  S.  5. 

covenants  are  introduced  into  the  assignment  (s).  Upon 
this  principle  an  assignee  of  a  term,  who  had  granted  a  sub- 
lease for  the  whole  term,  was  held  in  Beardman  v.  "Wilson  to 
have  in  effect  assigned  over,  and  therefore  to  have  ceased  to 
be  liable  to  the  lessor  or  his  assignee  for  the  subsequent  rent 
or  subsequent  breaches  of  covenant  (f). 

The  effect  of  the  doctrine  that  the  sub-lease  is  equivalent 
to  an  assignment  is  clearly  to  deprive  the  sub-lessor  of  his 
right  to  distrain  (w),  but  it  seems  to  be  equally  clear  that 
his  right  to  sue  upon  a  covenant  for  rent  remains  (^-),  that 
he  may  recover  for  use  and  occupation  (?/),  and  that  he  may 
re-enter  for  condition  broken  (z). 

It  is  necessary  to  point  out,  however,  that  the  extent  of  the 
principle,  that  a  sub-lease  for  the  whole  of  the  sub-lessor's  term 
amounts  to  an  assignment,  has  been  much  controverted  (a). 
Poulteney  v.  Holmes  (5),  where  it  was  held  that  a  sub-lease 
by  parol  for  the  whole  of  the  sub-lessor's  term  was  good  to 
sustain  an  ejectment  of  the  sub-lessor  by  the  lessee,  was 
questioned  in  Barrett  v.  Rolph  (c),  and  though  confirmed  in 

(s)  Palmer   v.  Edwards,   1    Doug.  {x)  Baker  v.  Gostling,  1  Bing.  N.  C. 

187,  n.  19. 

(0  Beardman  v.  Wilson,  L.  R.,  4  (y)  Pollock  v.  Stacey,  9  Q.B,  1033. 

C.  P.  67  ;  38  L.  J.,  C  P.  91 ;  19  L.  T.  {z)  Doe  v.  Bateman,  2  B.  &  Aid. 

282 ;  17  W.  R.  54.  168. 

(m)  Parmcnter  v.  Webber,  8  Taunt.  (a)  See  the  authorities  reviewed  in 

593;  Brook's  Abr.  tit.  Dette,  pi.  39;  R.  v.  Wilson,  6  M.  &  R.  157,  n ;  1  Sm. 

Preece  v.  Corrie,  5  Bing.  N.  C.  24 ;  L.  C.  in  the  notes  to  Spencer's  case. 

Pascoe  I'.  Pascoe,  3  Bing.  N.  C.  898.  {h)  1  Stra.  405. 

(c)  14  M.  &  W.  348. 

The  assignee  is  entitled  to  receive  the  rents  from  prior  sub-leases.  Patten 
V.  Deshon,  1  Gray  (Mass.)  325;  and  is  estopped  to  set  up,  tliat  prior  sub-lease 
was  contrary  to  covenant  against  assigning  and  subletting,  Sliuinway  ;•.  Col- 
lins, 0  Id.  227;  also  to  deny  the  title  of  lessor,  Frovost  v.  Calder,  2  Wend. 
(N.  Y.)  517,  523;  but  he  may  sliow  that  it  has  terminated,  Williams  v.  Wood- 
ard,  2  Wend.  (N.  Y.)  487. 

If  assignee  hold  over  he  may  become  implied  tenant  from  year  to  year. 
De  IVre  Co.  v.  Keynen,  05  Wis.  271.  Subti'iiants  of  assignee  are  liable  to 
be  ejected  by  lessor  after  proper  notice  to  quit.     Pardee  v.  Gray,  (i(i  Cal.  524. 

Tlie  assignee  may  take  the  benefit  of  all  covenants  running  with  the  land, 
and  sue  thereon  in  his  own  name.  For  example:  he  may  sue  upon  tlie  cove- 
nant to  pay  for  permanent  improvements.  In  ro  IIaisley,44  Q.  B.  Up.  Can.  345. 
347,  349  {-per  Wilson,  C.J.)  ;  limit  v.  Danforth,  2  Curt.  C.  C.  592,003  ;  Lanutti 
V.  Anderson,  0  Cow.  (N.  Y.)  302,  and  in  the  latter  case  for  improvements 
made  before  the  assignment. 

416 


Cii.  VII.  S.  5.]  ASSIGNMENT   OF   TERxM.  *2o9 

Follock  V.  Staeey  (i^),  had  some  little  doubt  thrown  upon  it 
in  Beardman  v.  Wilson  (^').  Upon  the  preponderance  oi" 
authority  there  appears  to  be  a  distinction  between  a 
sub-lease  by  deed  and  a  sub-lease  by  parol  *  oiily.  [*  259] 
The  sub-lease  by  parol  only  not  being  operative  as 
an  assignment  by  virtue  of  8  &  9  Vict.  c.  106  (/),  is  said  to 
create  a  lease  so  as  to  effectuate  the  intention  of  the  parties 

Sub-lease  for  years  by  tenant  from  year  to  year.  —  A  tenant 
from  year  to  year  who  underlets  for  a  long  term,  does  not 
thereby  assign  all  his  estate,  which  may  possibly  continue 
longer  than  the  term  expressed  to  be  granted  by  the  sub- 
lease (A),  and  consequently  retains  a  reversion  with  a  title 
to  distrain  until  his  defeasible  reversion  be  defeated  (Q,  i.e. 
until  a  notice  to  quit  given  to  him  has  expired. 

Operative  words  in  assignments. — An  assignment  is  usually 
made  by  the  word  "assign,"  but  sometimes  "grant,  assign, 
and  set  over "  are  used ;  no  particular  words  are  necessary, 
provided  the  intention  of  the  parties  be  sufficiently  ex- 
pressed (A:).  Where  a  lessee  for  life  granted  all  his  estate 
and  interest  to  A.  and  his  executors :  it  was  held  not  to 
amount  to  an  assignment,  because  a  grant  to  a  man  and  his 
executors  could  not  convey  an  estate  for  life,  being  a  free- 
hold (?).  An  agreement  to  assign  on  payment  of  a  sum  by 
instalments,  the  assignee  in  the  meantime  to  perform  the 
covenants  in  the  lease  and  keep  the  assignor  harmless^ 
and  the  assignor  to  re-enter  on  non-payment  of  any  instal- 
ment, is  merely  an  agreement  for  an  assignment  and  not  an 
assignment  (m).      Where    a   lessee    agreed    to    execute    an 

(d)  9  Q.  B.  1033.  sion  shall  not  be   necessary  to  such 

(e)  L.  R.,  4  C.  P.  17.  relation." 

(/)  Or   before    that   Act,    by    the  (h)  Oxley  v.  James,  13   M.   &   W. 

Statute  of  Frauds.        ,  200. 

(9)  An  Irish  statute,  23  &  24  Vict.  (/)  lb. 

c.  154,  s.  3,  enacts,  in  reference  to  the  (^)  See    Forms    of     Assignments, 

whole    subject,  and    making   no  dis-  post.  Appendix  B.,  Sects.  27,  28. 

tinction  between  deed  and  parol  en-  (/)  Earl  of  Derby  v.  Taylor,  1  East, 

acts,  "  that  the  relation  of    landlord  502. 

and   tenant    shall   be    deemed    to  be  (;«)  Hartshone  v.  Watson,  5  B.  N. 

founded    in    the   express   or   implied  C.  477. 
contract  of  the  parties,  and  a  rever- 

417 


*260     ASSIGNMENT,    BANKRUPTCY,    DEATH,   ETC.     [Ch.  VII.  S.  5. 

effectual  assignment  of  two  leases  of  premises,  "  as  he  held 
the  same  for  terms  of  twenty-eight  years,"  and  the  assignee 
agreed  to  accept  a  proper  assignment  accordingly,  without 
requiring  the  lessor's  title,  it  was  held  that  he  was  bound 
to  take  an  assignment  of  two  consecutive  leases,  though  the 
second  was  void  being  executed  under  a  power  which  had 
not  been  pursued  (?i). 

An  assignment  in  consideration  of  quarterly  payments  for 
the  remainder  of  the  term  will  not  upon  a  payment  being 
made  constitute  the  assignee  a  tenant,  so  as  to  give  the 
assignor  a  right  to  distrain  for  payments  subsequently 
due  (o). 

Assignment  for  benefit  of  creditors.  —  In  White  v.  Hunt  (p), 
a  debtor  assigned  to  a  trustee  for  the  benefit  of  his  creditors 
"all  his  goods  and  chattels,  personal  estate,  substance  and 
effects  whatsoever,  and  all  his  right,  title,  property,  benefit, 
claim  and  demand  whatever  therein."  It  was  held  that 
these  words  passed  a  term,  and  rendered  the  trustee  liable  as 

assiofnee  for  rent.^ 
[*260]  *  Usual  covenants  in  assignments.  — The  proper  and 
usual  covenants  on  the  part  of  the  assignor  of  a 
term,  viz.,  that  the  lease  is  in  full  force :  that  all  the  rent, 
covenants  and  conditions  have  been  i)aid,  performed  and 
observed  to  that  time :  that  notwithstanding  any  such  act  or 
thing  as  aforesaid  he  has  power  to  assign :  for  quiet  enjoy- 
ment by  the  assignee  during  the  remainder  of  the  term,  with- 

(ri)  Spratt  v.  Joffcry,  10    B.  &  C.  (/»)  L.  K.,  G  Ex.  .32;  40  L.  J.,  Ex. 

249;  and  see  Tweed  v.  Mills,  L.  K.,  1  23;  '23  L.  T.  55'.);  ovorniliiig  Carter 
C.  P.  39.  ■  I'.  ^Yarne,  M.  &  M.  479. 

'  (o)  Ilazcldine  v.  Heaton,  1  C.  &  E. 
40. 

^  Assignments  for  creditors.  —  A  general  voluntary  aaaignmcnt  will 
transfer  the  rit<lit  to  tlie  term,  and  if  the  assignee  take  possession  he  will  be 
liable  for  the  rents.  Boyce  v.  Bakcwell,  37  Mo.  492;  Eeker  v.  C.  B.  &  Q. 
II.  R.  Co.,  8  Mo.  App.  223;  Dorriincc  v.  Jones,  27  Ala.  630;  Morton  v.  Pinek- 
ney,  8  Bosw.  (N.  Y.)  1.35;  Young  v.  Peyser,  3  Id.  308;  Astor  v.  Lent,  (5  Id. 
612.  But  if  assignee  merely  enter  to  take  away  the  goods,  he  will  not  be 
personally  liable.  Lewis  v.  Burr,  8  Id.  140;  .Journeay  v.  Braekley,  1  Hilt. 
(N.  Y.)  447;  Pratt  (•.  Levan,  1  Miles  (Pa.)  .358. 

In  Magill  i;.  Young,  10  Q.  B.  II.  C.  301,  a  voluntary  assignee,  after  enter- 
ing and  occupying  the  preniises,  assigned  the  term  to  a  pauper,  and  was  thereby 
relieved  from  further  liability. 

418 


Cii.  VII.  S.  5.]  ASSIGNMENT   OF   TERM.  *260 

out  interruption  by  the  assignor  or  any  person  claiming 
under  him:  —  free  from  incumbrances  for  him: — and  for 
further  assurance ;  are  implied  in  every  assignment  made  on 
or  after  the  1st  January,  1882,  by  virtue  of  s.  7  of  the  Con- 
veyancing and  Law  of  Property  Act,  1881  (44  &  45  Vict.  c. 
41).  Tlie  proper  covenants  on  the  part  of  the  assignee  — 
for  which  no  provision  had  been  made  by  the  Conveyancing 
Act  —  are,  that  he  will  pay  the  rent  and  perform  the  cove- 
nants in  the  lease  and  save  harmless  the  assignor  from  any 
breach  thereof  by  him  or  his  assigns  ((^). 

Liability  of  assignor  to  assignee.  —  The  liabilities  of  an  as- 
signor to  an  assignee  upon  the  covenant  of  indemnity  were 
much  considered  by  the  Court  of  Appeal  in  the  peculiar  case 
of  Russell  V.  Shoolbred  (r),  in  which  it  was  held,  that  an 
assignor  who  pays  rent  has  no  lien  on  the  term,  and  cannot 
be  prejudiced  by  a  subsequent  assignment ;  and  that  a  right 
of  distress  is  not  a  security  to  the  benefit  of  which  a  surety 
paying  rent  is  entitled  under  the  Mercantile  Law  Amendment 
Act,  1856  (19  &  20  Vict.  c.  97,  s.  5).  On  the  general  cove- 
nant to  indemnify  the  proper  costs  of  defending  an  action  for 
breach  of  covenant  are  recoverable  as  damages  («).  On  an 
agreement  to  assign  a  lease,  and  to  indemnify  the  lessee  from 
the  rent,  the  assignee  entered  before  any  legal  assignment 
was  made,  some  goods  of  the  lessee  being  left  on  the  premi- 
ses ;  it  was  held  that  the  assignee  was  liable  on  his  in- 
demnity, those  goods  having  been  taken  as  a  distress  for 
rent,  and  that  it  was  immaterial  whether  the  goods  were  left 
with  the  leave  of  the  assignee  (Q. 

Notice  to  lessor  of  assignment  of  term.  —  There  is  no  obliga- 
tion at  common  law  upon  either  assignor  or  assignee  to  give 
any  notice  to  the  lessor  of  the  assignment :  but  the  lease  fre- 


(q)  See  forms,  Appendix  B.,  Sects.  pair,  the   lessee,   in   the   absence   of 

27,  28.  actual  loss,  can  only  recover  nominal 

(?•)  29  Ch.  D.  254— C.  A.  damages,   although    the    lessor   may 

(s)  Murrcll  i\  Tysh,  1  C.  &  E.  80.  have   commenced   an    action  against 

It  has  been  held  in  Ireland   that  in  the  lessee  for  breach  of  covenant  in 

an  action  by  tlie  lessee  against   the  the  lease  (Beattie  r.  Quiery,  10  Ir.  11. 

assignee  of  a  lease  for  breach    of  a  C.  L.  516). 

covenant  in  the  deed  of  assignment  (t)  Groom  v.  Buck,  2  M.  &  G.  567. 

to  keep  the  demised  premises  in  re- 

419 


*261     ASSIGNMENT,    BANKRUPTCY,    DEATH,   ETC.    [Ch.  VII.  S.  5. 

quently  contains  a  covenant  that  notice  shall  be  given,  and 
sometimes  also  that  a  copy  of  each  assignment  shall  be  fur- 
nished to,  or  even  that  the  assignment  itself  shall  be  pre- 
pared by,  the  lessor's  solicitors. 

Liability  of  lessee,  after  assignment.  —  A  lessee  continues 
liable  upon  express  covenants  in  the  lease,  notwithstanding 
any  assignment ;  therefore  an  action  of  covenant  will  lie 
against  a  lessee  for  years,  or  his  executors,  on  an  ex- 
[*261]  press  covenant,  *  notwithstanding  he  has  assigned 
his  term,  and  the  lessor  has  accepted  rent  from  the 
assignee  (w).l  The  lessor  may  at  the  same  time  sue  the 
lessee  upon  his  express  covenant,  and  the  assignee  upon 
the  privity  of  estate  ;  but  he  can  have  execution  ag^nst  one 
only.  An  eviction  out  of  part  of  the  land  will  only  amount 
to  a  discharge  of  an  assignee  pro  tanto  (.t). 

On  w^hat  covenants  the  assignee  is  liable.  —  An  assignee  of  a 
term  is  not  bound  by  the  personal  covenants  of  the  lessee. 
But  he  is  bound  to  perform  all  the  covenants  which  "  run 
with  the  land,"  and  that  without  being  named  by  the  special 
word  "  assigns "  (2/).  He  is  also  liable  to  his  immediate 
assignor  upon  any  express  covenants  by  him  in  the  deed  of 
assignment  (2).  But  he  is  not  liable  to  the  lessee  for  rent 
which  the  lessee  has  been  called  upon  to  pay  after  the  as- 
signee had  assigned  over  (a)  ;  and  there  is  no  implied  con- 
tract by  an  assignee  entering  upon  an  invalid  assignment 
and  quitting  without  notice,  that  he  will  indemnify  the 
lessee  against  the  rent  for  any  period  after  he  has  ceased  to 
occupy  (?>). 

Remote  assignee.  —  There  is,  however,  an  implied  promise 
on  the  part  of  each  successive  assignee  to  indemnify  the 
original  lessee  against  breaches  of  covenant  conmntted  by 
each  assignee  during  the  continuance  of  his  own  estate,  and 

(u)  Barnard  ;■.  Gadscall,  Cro.  Jae.  (z)  Harris    ?•.   Goodwyn,  9    DowL 

309 ;  Thursby  v.  Plant,  1  Wnis.  Saund.  401) ;  Burnett  r.  Lynch,  5  B.  &  C.  689. 

240.  («)  Wolvcridge  v.  Steward,  1  C,  M. 

(x)  Stevenson  v.  T^anibard,  2  East,  &  R.  044. 

576  ;  Canipl)ell  i;.  Lewis,  ;5  B.  &  A.  392.  (/,)  Coucli  v.  Tregoning,  L.  R.,  7  Ex. 

(y)  As    to   wliat    eovenants    "run  88;  41   L.  .L,  Ex.  97;  26  L.  T.  286; 

witii  tlic  land,"  see  utilp,  10:j.  20  W.  li.  r,m. 

'  See  note,  ante,  "  Effect  of  assignment  of  term." 

420 


Cii.  VII.  S.  5.]  ASSIGNMENT   OF   TERM.  *262 

this  promise  is  implied  although  such  assignee  may  have 
covenanted  to  indemnify  his  immediate  assignor  against  all 
subsequent  breaches  (c). 

In  an  action  by  the  assignor  claiming  indemnity  from  the 
assignee  for  breaches  of  covenant  in  the  lease,  the  court  will 
merely  direct  payment  on  account  of  breaches  already  com- 
mitted, and  will  not  make  a  general  declaration  of  the  as- 
signor's right  to  indemnity  (c^). 

"When  the  assignee's  liability  commences.  —  An  assignee  of 
a  term  may  be  sued  on  the  covenants  which  run  with  the 
land,^  although  he  has  not  taken  actual  possession  (e)  ;  ^  so 
the  assignee  of  an  assignee  is  liable,  although  he  has  not 
taken  actual  possession,  for  breaches  of  covenant  happening 
after  the  assignment  to  him  (/),  and  before  any  assignment 
over  by  him  (^)  :  so  a  mortgagee  by  assignment  of  the  term, 
though  not  in  possession,  is  liable  to  perform  the  cove- 
nants in  the  lease  Avhich  run  with  the  land  (Ji). 
*  To  avoid  this,  mortgages  of  leaseholds  are  gener-  [*262] 
ally  made  by  way  of  under-lease  (€).  Where  a  lessee 
covenanted  for  himself  and  his  assigns  to  pull  down  certain 
old  houses  and  build  others  within  seven  years,  but  did  not 
perform  the  covenant,  and,  after  the  end  of  seven  years, 
assigned,  an  action  of  covenant  was  held  not  to  lie  against 
the  assignee  because  the  breach  was  complete  before  the 
assignment,  and  the  liability  of  the  assignee  depends  solely 
upon  the  privity  of  estate ;  had  the  covenant,  however,  been 
broken  after  the  assignment,  as  if  the  lessee  had  assigned 
before  the  seven  years  expired,  the  assignee  would  have 
been  liable  (Jc).     And  he  would  have  been  liable  to  an  ejects 

(c)  Moule  V.  Garrett,  L.  R.,  5  Ex.  (9)  Beardman  v.  Wilson,  L.  R.,  4 

182;  41    L.  J.,  Ex.  62   (Exch.  Ch.)  ;  C.  P.  57  ;  17  W.  R.  54. 

26  L.  T.  367  ;  20  W.  R.  416.  {h)  Stone  v.  Evans,  Peake,  Ad.  Ca. 

((/)  Lloyd  V.  Dimmack,  L.  R.,7Ch.  94;  Burton  v.  Barclay,  7  Ring.  745; 

D.  398;  47  L.  J.,  Ch.  398;  38  L.  T.  Williams  v.  Bosanquet,  1  Brod.  &  B. 

173;  26  W.  R.  458.  2.38;    overruling  Eaton  v.  Jaques,    2 

(e)  Walker  v.  Reeves,  2  Doug.  461,  Doug.  455. 

n.;  3  Id.  19.  (/)  P„m,  264. 

(/)  Taylor  v.  Shum,  1  Bos.  &  P.  {k)  Churchwardens  of  St.  Saviour's, 

21.  Southwark  v.  Smith,  1  W.  Blac.  351; 

^  See  note,  ante,  "Effect  of  assignment  of  term." 

2  See  note,  ante,  sec.  1,  "  Assignments.     How  made." 

421 


*262    ASSIGNJVIENT,    BANKRUPTCY,    DEATH,   ETC.     [Ch.  VII.  S.  5. 

ment  for  the  forfeiture  committed  prior  to  the  assignment  to 
him,  unless  such  forfeiture  had  been  waived  (Z). 

May  assign  to  man  of  straw.  —  An  assignee  being  liable  to 
the  original  lessor  or  his  assigns  only  in  respect  of  privity 
of  estate,  may  get  rid  of  such  liability  by  an  assignment 
over  (m),  except  as  to  previous  breaches ;  ^  with  respect  to 
which  he  will  continue  liable  both  at  law(w)  and  in 
equity  (o).  Such  an  assignment  may  be  made  even  to  a 
pauper  or  to  a  person  imprisoned  for  debt  (jt>),  but  the 
assignee  will  continue  liable  upon  any  express  covenant 
entered  into  by  him  in  the  assignment  to  himself  {q}. 

The  assignee  of  a  term,  declared  against  as  such,  has 
been  held  not  to  be  liable  for  rent  accruing  after  he  had 
assigned  over,  though  it  was  stated  that  the  lessor  was  a 
party  executing  the  assignment,  and  agreed  thereby  that  the 
term,  which  was  determinable  at  his  option,  should  be  ab- 
solute (r).  But  if  the  breach  had  been  continuing,  it  would 
have  been  otherwise :  as  if  there  had  been  a  covenant  to  re- 
pair within  a  certain  time  after  notice,  and  the  repairs  were 
not  done  according  to  such  notice,  though  the  premises  were 
out  of  repair  before  the  assignment  (6-). 

Wolveridge  v.  Steward.  —  In  Wolveridge  v.  Steward  the 
lessee  assigned  to  A.  his  interest  in  demised  premises  by 
indenture,  executed  by  both  parties,  "  subject  to  the  payment 
of  the  rent  and  performance  of  the  covenants  and  agreements 

.3   Rurr.   1272;  Grcscott  v.  Green,  1  (»)  Harvey  v.  King,  2  C,  M.  &  R. 

Salk.   109;     Brittin    v.   Vaux,    Lutw.  18;  Pitclier  r.  Tovey,  1  Salk.  81. 
109;  Hawkins  v.  Sherman,  3  C.  &  P.  (o)  Pliilpot  v.  Hoare,  2  Atk.  219; 

459.  Anib.  480;  Treade  v.  Coke,  1  Vern. 

(/)  Bennett  v.  Herring,  3  C.  B.,  N.  lOf);  2  Eq.  Ca.  47;  Onslow  v.  Corrie, 

S.  370.  2  Madd.  '.VM). 

(m)  Valiant  v.  Dodomede,  2  Atk.  (/>)  Valiant  ?'.  Dodomode,  2  Atk. 

546;  Pitdicr  v.  Tovey,  12   Mod.  23;  446;   I)e  Kcux  v.  Nash,  2  Stra.  1221; 

Lp  Keux  V.  Nash,  2  Sir.  1222  ;  Walker  Taylor  v.  Shum,  1   Bos.  &  P.  21 ;  On- 

V.  Uicves,  2  Doug.  461,  n. ;  3  Id.  19;  slow  v.  Corrie,  2  Madd.  330. 
Taylor  v.  Shuin,  1   Bos.  &  P.  21;  Co.  (7)  Wolveridge    v.  Steward,  1  Cr. 

Lit.  3  a,  356  b;    Boulton  v.  Canon,  &  M.  «!44. 

rrecm.  .336;    Ciiancellor    v.   Poole,  2  (;)  Ciiancellor    i;.  Pople,  2    Dong. 

Doug.  764;  Beardman  v.  Wilson,   L.  7(i4. 
R.,  4  C.  P.  57  ;  17  W.  11.  54.  (s)  Com.  Dig.  lit.  Covenant  (B.). 

'  Sec  note,  fijitc,  "Effect  of  assignment  of  term";  also,  Magill  i;.  Young, 
10  Q.  B.  U.  C.  301. 

422 


Cii.  VII.  S.  5.1  ASSIGNMENT   OF  TERM.  *263 

reserved  and  contained  in  the  original  lease."  A.  took 
possession  and  occupied  the  premises  under  this 
*  assignment,  and  before  the  expiration  of  the  term  [*263] 
assigned  to  a  third  jjerson.  After  the  assignment 
over  the  lessee  was  called  upon  by  the  lessor  to  pay  rent 
which  the  assignee  had  suffered  to  be  in  arrear ;  it  was  held, 
that  the  lessee  could  not  maintain  an  action  of  covenant 
against  A.  in  respect  of  such  breach,  the  words,  "  subject  to 
the  payment  of  rent,  &c.,"  being  words  of  qualification  and 
not  words  of  contract  (^). 

Rights  of  assignees  of  a  term.  —  Assignees  of  a  term  may 
sue  the  reversioner,  or  his  assigns,  for  breaches  of  covenant 
running  with  the  land  which  are  committed  by  him  or  them 
after  the  assignment  (?/)  ;  an  assignee  of  a  lease  by  estoppel 
is  no  exception  to  the  rule  (.?•).  But  an  assignee  cannot 
maintain  an  action  upon  a  breach  of  covenant  before  the 
assignment  to  him  (^),  nor  for  the  breach  of  any  covenant 
which  does  not,  b}"  touching  or  concerning  the  demised 
premises,  run  with  the  land  or  the  reversion  (2;). 

(b)   By  Way  of  Mortgage. 

Mortgagee's  liability.  —  A  mortgagee  of  a  leasehold  estate 
by  ass/(//iment  is  liable,  so  long  as  he  has  the  legal  estate,  to 
perform  the  covenants  which  are  obligatory  on  any  ordinary 
assignee,  whether  he  be  in  possession  or  not(a):i  he  may 

(t)  Wolveridge     v.     Steward     (in  (z)  See  Spencer's  case,  1  Smith  L. 

error),  1  Cr.  &  M.  644  ;  3  Moo.  &  Sc.  C.  60;  and  Chap.  V.,  Sect.  8  (b),  ante, 

561.  162. 

(m)  Bac.  Abr.  tit.  Covenant  (E.  5).  (a)   Stone  r.  Evans,  Peake,  Ad.  Ca. 

(.r)  Ciithbertson  v.  Irvinj?,  4  H.  &  94 ;  7  East,  341 ;  Williams  i\  Bosan- 

N.  742  ;  6  Id.  135;  28  L.  J.,  Ex.  306;  quet,  1  Brod.  &  B.  238;  Westerell  p. 

29  Id.  485.  Dale,  7  T.  E.  312 ;  Burton  v.  Barclay, 

(//)  Lewis  )•.  Ridge,  Cro.  Eliz.  863 ;  7  Bing.  745. 
Martyn  v.  Williams,  1  H.  &  N.  817; 
26  L.  J.,  Ex.  117. 

1  Mortgages  of  term,  (a)  Effect.  —  Mortgagee  takes  all  the  lessee's 
rights,  subject  to  conditions  in  mortgage.     Yates  ?•.  Kinney,  19  Neb.  275. 

(6)  Possession  bi/  mortfjaf/ee :  whether  essential  to  liahillti/.  It  has  been  held  in 
many  cases  in  the  United  States  that  an  assignee  by  mortgage,  nnlike  an 
absobne  assignee,  is  not  liable  unless  he  take  possession.  Astor  v.  JNIiller,  2 
Paige  (N.  Y.)  68,  76,  77  (and  see  per  Walworth,  Chan.)  ;  Babcock  v.  Scoville, 

423 


*264    ASSIGNMENT,   BANKRUPTCY,   DEATH,   ETC.     [Ch.  VII.  S.  5. 

assign  it  without  being  in  actual  possession  (J).  A  mort- 
gagee may  avoid  the  liability  of  an  assignee  by  taking  a  sub- 
lease instead  of  an  assignment,  and  this  is  frequently  done.. 
If  he  become  assignee,  equity  will  not  afford  him  any  relief, 
though  he  may  offer  to  forego  his  charge  and  lose  his 
money  (^).  A  trustee  to  whom  a  lease  is  assigned  to  secure 
an  annuity  to  a  third  person  is  strictly  an  assignee  (c?).  A 
power  given  to  a  trustee  in  a  mortgage  deed  to  sell  if  the 
mortgagee  requests  it,  does  not  necessarily  imply  a  right  to 
enter  on  the  premises  (p). 

Equitable  assignments  by  deposit.  —  Every  assignment  of  a 
lease  is  void  at  law  unless  made  by  deed  (/).^  Where  a 
lease  is  deposited  b}^  way  of  equitable  mortgage  as  a  security 
for  money  advanced  (^),  it  is  clear  that  the  depositee  has  no 
legal  title  (A)  ;  and  it  would  seem  to  be  the  better  opinion 
that  the  lessor  has  no  remedy  in  equity  against  the 
[*264]  depositee,  upon  the  covenants  in  *  the  lease  (i),  even 

(b)  Smartle  i'.  Williams,  3  Lev.  (g)  See  Williams  ?•.  Evans,  23 
388;  8  &  9  Vict.  c.  100,  s.  5.  Beav.  239;  Matthews  r.  Gnodday,  31 

(c)  Anon.,  Freem.  Ch.  253;  Cas-  L.  J.,  Ch.  282;  Bulfin  v.  Dunne,  12 
herd  r.  Att.-Gen.,  G  Price,  411;  Sparkes  Ir.  Ch.  R.  67. 

V.  Smith,  2  Vern.  275.  (h)  Doe  d.  Maslin  v.  Eoe,  5  Esp. 

(d)  Gretton  v.   Diggles,  4  Taunt.       105. 

706.  (0  Moores    v.  Choat,  8  Sim.   508 

(e)  Watson  i'.  Waltham,  2  A.  &  E.  (overruling  Flight  v.  Bontley,  7  Sim. 
485.  149). 

(/)  8  &  9  Vict.  c.  106,  s.  3. 

.56  111.  461,  464  (per  Sheldon,  J.,  distinguishing  mortgages  from  absolute 
assignments)  ;  Calvert  r.  Bradley,  16  How.  580,  695  (prr  Daniel,  J.,  indicating 
his  opinion  and  limiting  12  Pet.  201,  and  13  Pet.  294)  ;  Fanners'  Bank  v. 
Leigh  (Va.)  69,  83,  84  ;  Weidner  r.  Foster,  2  Penn.  23,  26  (per  Uogers,  J.)  ; 
Walton  r.  Cronly's  Adm'r.  14  Wend.  (N.  Y.)  63. 

The  above  cases,  however,  seem  largely  to  rest  upon  the  theory  of  mort- 
gages of  the  civil  law  as  laid  down  in  Eaton  r.  Jaques,  Doug.  454,  followed  in 
New  York  and  many  .states,  but  overruled  in  England,  and  not  followed  in 
many  of  the  states. 

It  aj)pears  by  above  cases  tliat  possession  is  considered  essential  to  liabil- 
ity in  some  states  where  tiie  common  law  theory  prevails.  It  docs  not  seem 
that  possession  is  essential  in  Ontario.  Cameron  v.  Todd,  22  Q.  B.  U.  (' 
390;  Magrath  ;-.  Todd,  26  Id.  87. 

*  An  assignment  of  less  than  a  freehold  interest  need  not  (generally)  be 
by  deed  in  the  United  States  unless  required  to  be  by  some  special  statute, 
unless  the  lease,  also,  is  hy  deed.  See  ante,  sec.  1,  3,  notes.  The  Statutes 
of  Frauds  do  not  usually  require  it. 

424 


Ch.  VII.  S.  0.]  SEVERANCE   OF   TERM.  *264 

altliouirli  tlie  depositee  be  in  possession  (/c).  It  has  been 
held,  too,  in  a  case  where  the  depositee  not  only  entered, 
but  also  paid  rent  in  arrear,  and  was  accepted  by  the  lessor 
as  owner  of  the  lease,  the  lessor  had  no  equity  to  compel 
the  depositee  to  take  a  legal  assignment  of   the  lease   (?). 


Sect.  6.  —  Severance  of  Term. 

An  assignee  of  part  of  the  land  cannot  be  charged,  in  an 
action  of  debt,  with  the  whole  rent,  but  only  for  a  propor- 
tionate part  thereof  Qtri)}  But  an  assignee  of  part  is  liable 
to  a  distress  for  rent  due  for  the  whole  of  the  demised  prem- 
ises (wi),  and  to  an  action  on  every  covenant  running  with  the 
land  and  affecting  the  part  assigned,  inasmuch  as  an  assignee 
cannot  discharge  himself  of  all  his  liability  to  the  covenants 
running  with  the  land,  which  are  in  their  nature  divisible  (n). 

The  assignee  of  part  may  also  sue  without  joining  his  co- 
assignees,  as  was  held  in  a  case  where  an  assignee  of  five- 
sixths  of  a  sub-lease  recovered  damages  from  the  mesne  land- 
lord for  breach  of  a  covenant  for  renewal  of  the  head 
lease  Qnii). 

(A)  Cox  V.  Bishop,  8  De  G.,  M.  &  479 ;  Hare  v.  Cator,  Cowp.  766 ;  Hol- 

G.  815;  26  L.  J.,  Ch.  389.  ford  v.  Hatch,  1  Doug.  183. 

(/)  Moore  v.  Greg,  2  De  G.  &  S.  (w)  Congham   v.   King,    Cro.    Car. 

334.     But  see  Luc;as  v.  Comerford,  1  221 ;  Ganion  v.  Vernon,  2  Lev.  231 ; 

Ves.  jun.  235;  Close  v.  Wilbcrforce,  Stevenson  v.  Lambard,  2  East,  576. 
1  Beav.  112.  {nn)   Simpson  ?;.  Clayton,  4  B.  N.  C. 

(»i)  Curtis  V.  Spitty,  1  Bing.  N.  C.  758. 
756 ;  Merceron  v.  Dowson,  5  B.  &  C. 

^  Severance  of  term.  —  Assigrtees  of  separate  parts  of  demised  premises 
are  separately  and  not  jointly  liable  to  the  lessor,  each  for  his  proportionate 
part.  Babcock  i-.  Scoville,  56  III.  461 ;  Van  Rensselaer  v.  Bradley,  3  Denio 
(N.  Y.)  135;  Van  Rensselaer's  Exrs'  v.  Gallup,  5  Id.  454;  Astor  v.  Miller,  2 
Paige  (N.  Y.)  68,  69  (and  see  per  Walworth,  Chan.)  ;  Weidncr  v.  Foster,  2 
Penn.  23;  Farley  v.  Craig,  11  N.  J.  L.  262. 

In  Deniainville  v.  Mann,  32  N.  Y.  197,  it  was  held  that  the  assignee  of  an 
undivided  part,  if  in  possession  of  whole  was  liable  for  whole  rent,  but  in  St. 
Louis  Pub.  Schools  u.  Boatmen's  Ins.  Co.,  5  Mo.  App.  91,  in  a  similar  case, 
just  the  opposite  was  held. 

Where  the  rent  is  a  service  indivisible,  assignment  by  lessee  multiplies 
{]ier  Jewett,  J.,  in  Van  Rensselaer  v.  Bradley,  3  Denio  (N.  Y.)  135, 141,  142), 
and  by  lessor  extinguishes  it. 

425 


*265    ASSIGNMENT,   BANKRUPTCY,   DEATH,   ETC.     [Ch.  VII.  S.  7. 

Sect.  7.  —  Suh-lease. 

Sub-lease  for  vrhole  term  is  an  assignment.  —  A  sub-lease  is 
a  demise  by  a  lessee  (or  his  assignee)  for  a  less  term  than  he 
himself  has.^  A  demise  for  the  whole  term,  if  it  be  by  deed, 
amounts  to  an  assignment  (o).^  A  fortiori,  a  lease  by  deed 
for  a  period  beyond  the  term  will  operate  as  an  assignment.^ 
But  there  are  many  cases  in  which  a  sub-lease  by  parol  for 
the  whole  term  has  been  allowed  to  operate  as  such,  so  as  to 
give  the  under-lessor  a  right  to  an  action  for  rent  (jt?),  but 
not  a  right  to  distrain  (^). 

What  sub-leases  are  good.  —  A  sub-lease  for  years  made  by 
a  lessee  for  years,  to  commence  immediately  on  his  death,  is 
good,  if  he  die  during  his  own  term ;  therefore  a  man  pos- 
sessed of  a  term  for  twenty  years  may  grant  the  lands  for 
nineteen  years  to  commence  after  his  death,  and  it 
[*265]  will  be  good  for  *  so  many  of  the  twenty  years  as 
shall  be  unexpired  at  the  time  of  his  death.  Where 
a  lessee  has  power  to  renew  his  term  upon  giving  six  months' 

(o)   Hicks  y.  Downing,  1  Ld.  Rayni.  44r) ;  Pollock  v.  Stacy,  9Q.  B.  1033; 

99  ;  Wollaston  v.  HakLnvill,  3  M.  &  G.  Williams  r.  Hayvvard,  1  E.  &  E.  1040 ; 

297;    Beardman   v.   Wilson,  L.  R.,  4  Baker  v.  Gostling,  1  Bing.  N.  C.  19; 

C.  P.  57;  38  L.  J.,  C.  P.  91;  19  L.  T.  In  re  Turner,  11  Ir.  Ch.  K.  304. 
282;  17  W.  R.  54.  (7)  Preece  i-.  Corrie,  5   Bing.  24; 

(p)  Poulteney  v.  Holmes,  1  Str.  Pascoe  v.  Pascoe,  3  Bing.  N.  C.  898. 
405;    Smith   v.   Mapleback,    1   T.    R. 

1  Sub-lease,  (a)  What  is  it.  —  See  ante,  sec.  5,  note,  "  Assignment,  dis- 
tinguished from  sub-lease." 

A  lessee  may  sublet  unless  restrained  by  terms  of  lease.  Goldsmith  v. 
Wilson,  08  Iowa,  085. 

Lease  for  twenty  years  by  tenant  for  lives  is  a  sub-lease,  Jackson  v. 
Silvernail,  15  Johns.  (N.  Y.)  278  ;  or  for  two  years,  by  tenant  for  seven  years, 
Jackson  v.  Harrison,  17  Johns.  (N.  Y.)  GO.* 

(6)  Remedies  and  lidliilities.  —  Sub-lessee's  remedies  are  against  the  lessee, 
Quay  V.  Lucas,  25  Mo.  App.  4;  and  he  is  not  liable  to  the  lessor,  Quackenboss 
V.  Clarke,  12  Wend.  (N.  Y.)  487,  492;  Williams  v.  Woodard,  2  Id.  487,  492 
(per  Savage,  Ch.  J.);  Gibson  i;.  Mullican,  58  Tex.  430;  Fulton  r.  Stuart,  2 
Ohio,  210. 

In  Missouri  a  sub-lessee  is  liable,  by  statute,  for  rent  directly  to  the  lessor. 
Rev.  St.  of  Mo.  sec.  3095  ;   Hicks  v.  Martin,  25  Mo.  App.  359. 

•^  Bedford  i;.  Terhune,  30  N.  Y.  453;  Ind.,  &c.,  R.  R.  Co.  v.  Cleveland  R.  R., 
45  Ind.  281 ;  Smiley  v.  Van  Winkle,  0  Cal.  005 ;  Hlumenberg  v.  Myres,  32  Id. 
93.     It  is  not  always  necessary  to  be  by  deed  in  United  States. 

«  Stewart  v.  Long  I.  R.  R.  Co.,  102  N.  Y.  001  ;  Selby  v.  Robinson,  15  C.  P. 
U.  C.  370. 

426 


Ch.  VII.  S.  7.]  SUB-LP]ASE.  *265 

notice  of  his  intention  before  its  expiration,  and  upon  his 
preparing  a  fresh  lease,  &c.,  he  cannot,  though  he  gave  notice 
of  such  his  intention,  demise  the  premises  to  another  party 
beyond  the  expiration  of  the  first  term,  unless  he  prepare 
such  fresh  lease  and  get  it  executed,  or  at  least  endeavour  so 
to  do  (/•). 

Rights  of  lessor  against  sub-lessee.  —  There  being  no  privity 
of  contract  between  the  lessor  and  the  sub-lessee,  the  lessor 
cannot  sue  the  sub-lessee  on  any  of  the  covenants  of  the 
original  lease  (s),  but  the  lessor  may  distrain  on  the  sub- 
lessee for  the  rent  payable  under  the  original  lease,  and 
may  also  avail  himself  of  a  condition  for  forfeiture  in  the 
original  lease  (^). 

An  injunction  has  also  been  granted  to  restrain  a  sub- 
lessee from  permitting  a  sale  by  auction  in  contravention 
of  a  covenant  in  the  original  lease  (it),  and  to  restrain  a 
sub-lessee  from  using  the  demised  premises  for  a  particular 
trade,  in  contravention  of  a  covenant  in  the  assignment 
of  the  premises  to  his  lessor  (a;). 

Sales  of  sub-leases.  —  A  contract  to  sell  a  lease  is  not 
satisfied  by  the  conveyance  of  a  sub-lease  (?/),  for  a  sub- 
lease might  become  void  if  the  covenants  and  conditions 
in  the  original  lease  were  not  duly  performed  (2).  But 
on  the  purchase  of  a  sub-lease  it  is  not  a  valid  objection 
to  the  title  that  the  sub-lease  may  become  forfeited  by  the 
non-perfoi'mance  of  the  covenants  in  the  original  lease  (a). 
It  is  the  duty  of  a  person  contracting  for  a  sub-lease  to 
ascertain  the  contents  of  the  original  lease  (J). 

Covenant  to  perform  covenants  of  head  lease.  —  A  sub-lease 
should  always  contain  an  express  covenant  by  the  sub-lessee, 

(?•)  Mackay  v.  Mackreth,  4  Doug.  Kay,  550;    Blake  v.  Pliinn,  3  C.  B. 

213.  976;  Henderson  v.  Hudson,  15  W.  K. 

(s)  Holford  r.  Hatch,  1  Doug.  183.  800;    Sheard    v.  Venables,  36    L.  J., 

(0  Arnold  v.  Woodward,  6  B.  &  C.  Ch.  922 ;  15  W.  R.  1166 ;  Duddell  v. 

519.  Simpson,  L.  R.,  2  Ch.  Ap.  102. 

(k)  Parker  v.  Wliyte,   1    H.  &  M.  (z)   Doe  (/.   Muston   v.  Gladwin,  6 

167  ;  32  L.  J.,  Ch.  520.  Q.  B.  953  ;  Logan  v.  Hall,  4  C.  B.  598. 

(.r)  Clement  v.  Welles,  L.  R.,  1  Eq.  (a)   Hayford  v.  Criddle,  22   Bcav. 

209;  35  Beav.  213.  477. 

(.V)  Madeley  v.  Booth,  2  De  G.  &  (h)  Cosser  v.  Collinge,   3  Myl.  & 

Sm.    718;    Darlington    v.   Hamilton,  K.  283. 

427 


*266    ASSIGNMENT,   BANKRUPTCY,   DEATH,    ETC.     [Ch.  VII.  S.  7. 

to  observe  and  perform  all  the  covenants  and  conditions 
in  the  original  lease,  except  those  which  he  is  especially 
exempted  from  performing  ((?). 

Such  a  contract  was  held  in  the  important  case  of  Hornby 
V.  Cardwell,  Hanbnry,  Third  Party  (cZ),  to  amount  to  a 
contract  of  indemnity,  so  that  the  sub-lessee  is  liable  to  the 
mesne  landlord  for  the  costs  of  an  action  (reasonably 
defended)  by  the  head  landlord  against  the  mesne  landlord 
on  the  contracts  of  the  head  lease,  where  as  there  is  no 
such  indemnity  if  the  contract  of  the  sub-lessee  be  merely 
to  perform  similar  contracts  to  those  contained  in  the  head 

lease  (g). 
[*266]  *  Bringing  in  sub-lessee  as  third  party.  —  Where  there 
is  a  contract  to  perform  all  the  contracts  of  the  head 
lease,  and  both  the  contracts  of  the  head  lease  and  the 
mesne  lease  are  broken,  the  head  landlord  (although  he 
can  eject)  cannot  sue  the  sub-tenant  for  damages,  there 
being  no  privity  of  contract  between  them ;  but  the  head 
landlord  may  sue  the  mesne  landlord,  who,  in  his  turn,  may 
sue  the  sub-tenant,  or  pursue  what  seems  to  be  the  more 
convenient  course  of  bringing  him  in  as  third  party  under 
sect.  24,  sub-s.  3  of  the  Judicature  Act,  1873,  and  Order  XVI., 
Rules  17-19  of  the  Rules  of  the  Supreme  Court.  If  this  be 
done,  the  High  Court  has  a  discretion,  under  Order  LV.,  to 
order  the  sub-tenant  so  made  third  party  to  pay  the  costs 
of  an  action  by  tlie  head  landlord  against  the  mesne  landlord 
reasonably  defended  (/). 

Sub-lessee  not  affected  by  surrender.  —  A  sub-lessee  is  not 
affected  by  the  voluntary  surrender  of  the  lease  by  his 
mesne  landlord  to  the  superior  landlord ;  nor,  if  he  has 
knowledge  of  it,  is  he  bound  in  any  way  to  treat  it  as  a 
notice  to  (piit  (/y). 

(c)  See  Form,  Appendix  A.,  Sect.  overruling  Neale  v.  Wyllie,  3  B.  &  C. 
14.  C33. 

(d)  L.  H.,  H  Q.  B.  D.  329;  51  L.  J.,  (/)  Hornby  v.  Cardwell,  Ilanbury, 
Q.  B.  89;  45  L.  T.  781;  .30  W.  R.  TliiVd  I'nrty,  T>.  11.,  8  Q.  B.  1).  329— 
203— C.  A.  C.  A. 

(r)  Logan    i'.   Ilali,  4   C.   B.   MB;  (;/)   Mellor    v.   Watkins,   L.    R.,  9 

Penley    v.    Watts,  7    M.  &   W.  (iOl ;       Q.  B.  400;  23  W.  R.  66. 
Walker  v.  Walton,  10  M.  &  W.  249; 

428 


Cii.  VII.  S.  8.]  ATTORNMENT,  *267 


Sect.  8.  —  Attornment. 

Origin  of  attornment.  —  After  the  statute  Quia  emptores  (7i), 
by  which  subinfeudation  was  prohibited,  it  became  neces- 
sary when  the  reversioner  or  remainderman  after  an  estate 
for  years,  for  life  or  in  tail,  granted  his  reversion  or 
remainder,  that  the  particular  tenant  should  attorn  to  the 
grantee  (i).  This  necessity  of  attornment  was  in  some 
degree  diminished  by  the  Statute  of  Uses  (/c),  whereby  the 
possession  was  immediately  executed  to  the  use :  and  by 
the  Statute  of  Wills  (Z),  by  which  the  legal  estate  was 
immediately  vested  in  the  devisee. 

Substitution  of  notice  for  attornment.  —  Attornments,  how- 
ever, have  long  been  rendered  unnecessary  in  nearly  every 
case  by  the  4  Ann.  c.  16,  s.  9,  which  enacts,  that  "all  grants 
or  conveyances,  by  fine  or  otherwise,  of  any  manors  or  rents, 
or  of  the  reversion  or  remainder  of  any  messuages  or  lands, 
shall  be  good  and  effectual  to  all  intents  and  purposes 
without  any  attornment  of  the  tenants  of  any  such  manors, 
or  of  the  land  out  of  which  such  rents  shall  be  issuing,  or 
of  the  particular  tenants  upon  whose  particular  "estates  any 
such  reversions  or  remainders  shall  and  may  be  expectant 
or  depending,  as  if  their  attornment  had  been  had  and 
made  "  (m) ;  but  by  sect.  10  it  is  provided  that  "  no 
such  tenant  shall  be  prejudiced  *  or  damaged  by  pay-  [*267] 
ment  of  any  rent  to  any  such  grantor  or  conusor,  or 
by  breach  of  any  condition  for  non-payment  of  rent,  before 
notice  shall  be  given  to  him  of  such  grant  by  the  conusee 
or  grantee"  (w). 

Attornments  to  strangers  void.  —  By  11  Geo.  2,  C.  19,  s.  11, 
attornments  made  by  tenants  to  strangers  claiming  title  to 
the  estate  of  their  landlords  shall  be  null  and  void,  and  their 
landlords'  possession  not  affected  thereby,  unless  made  "pur- 

(A)  18  Edw.  1,  St.  1.  (m)  This    appears    to    have   beer, 

(i)  Shep.  Touch,  chap.  xiii.  overlooked  in  Edwards  v.  Wickwar, 

(A;)  27    Hen.    8,    c.    10;    Rivis    v.  L.  R.,  1  Eq.  400. 

Watson,  5  M.  &  W.  255.  (n)  See  Cook  v.  Moylan,  1  Exch. 

(/)  34  &  35  Hen.  8,  c.  5,  repealed  67 ;  5  D.  &  L.  101  ;  Cole  Ejec.  229, 

and  re-enacted  by  1  Vict.  c.  26.  473. 

429 


*267    ASSIGNMENT,   BANKRUPTCY,   DEARTH,    ETC,     [Ch.  VII.  S.  8. 

suant  to  and  in  consequence  of  some  judgment  at  law,  or 
decree  or  order  of  a  court  of  equity;  or  made  with  the 
privity  and  consent  of  the  landlord  or  landlords,  lessor  or 
lessors ;  or  to  any  mortgagee  after  the  mortgage  is  become 
forfeited." 

Attornment  by  mortgagor  to  mortgagee.  —  For  the  purpose 
of  securing  mortgage  interest  by  the  preferential  powers  of 
distress  for  rent,  it  has  been  the  practice  for  mortgagors  to 
"  attorn  tenants  "  to  their  mortgagees.  The  cases  upon  this 
subject  have  been  already  considered  (o). 

Assignee  may  sue  or  distrain  without  attornment.  —  An 
assignee  of  the  reversion,  whether  by  way  of  mortgage  or 
otherwise,  if  he  has  given  due  notice  under  4  Ann.  c.  16, 
s.  9,  may  sue  or  distrain  for  the  rent  (jo).  It  makes  no  dif- 
ference that  the  previous  tenancy  was  only  from  year  to 
year  (9').  But  a  prior  mortgagee  is  not  an  assignee  of  the 
reversion,  and  therefore  cannot  distrain  or  sue  for  the  rent 
until  after  the  mortgagor's  tenant  has  attorned  to  him,  and 
so  created  a  new  tenancy  as  between  them  (r).  After  an 
attornment  the  mortgagee  may  distrain  for  the  arrears  of 
rent  thereby  admitted  to  be  due  (s).  Such  attornment  may 
be  made  "  after  the  mortgage  is  become  forfeited "  without 
the  assent  of  the  mortgagor  (^). 

No  stamp  on  mere  attornments.  —  An  instrument  in  writ- 
ing, professing  to  be  a  mere  attornment,  but  which  is  in  fact 
an  agreement  to  create  a  fresh  tenancy  on  new  terms,  requires 
a  stamp  as  a  lease  or  as  an  agreement  for  a  lease  (it).  But  a 
mere  memorandum  of  attornment,  not  creating  any  new  ten- 


(0)  Ante,  ch.  vi.,  sect.  6.  (/)  Moss  v.  Gallimore,  1  Smith  L. 

(;0  Lumlcy  r.  Ilodfjson,  IH  East,  C.  029    (7th    cd.)  ;    Doe    <l.    IIijj;t,Mn- 

99;  Rivis  /.  Watson,  5  M.&AV.  255;  botham   v.   Barton,  11    A.   &  E.  JJH ; 

Lloyd  V.  Davies,  2  Exch.  108.  Doe  d.  Mayor,  &c.,  of  Poole  v.  Wliitt, 

(7)   Biirrowcs  (•.  Gradin,  1  D.  &  L.  15  M.  &  W.  571 ;  Hickman  v.  Macliin, 

2i;5;  llarmer  v.  Bean,  3  C.  &  K.  .307.  4  H.  &  N.  720;  but  see  Alcliorne  v. 

(r)   Evans  i'.  Elliott,  0  A.  &  E.  342  ;  Gomme,  2  Bing.  54,  50,  Gl ;  Delancy 

Partingt(m    ».  Woodcock,  0  A.  &  E.  v.  Fox,  2  C.  H.,  N.  S.  708. 

600;    Kogers  v.  Humi.hrcys,  4   A.  &  (»)  Cornish  v.  Searall,  8  B.  &  C. 

E.  313.     See  Forms  of    Attornment,  471;    Doe  d.  Frnnkis  v.  Frankis,   11 

Appendix  C.,  Nos.  10  and  Ki  (a).  A.  &  E.  702;   Kagieton  v.  (Jutteridpe, 

(s)  Ghidman   i,'.  Plumer,  15  L.  J.,  11  M.  &  W.  405 ;  2  Dovvl.,  N.  S.  1053. 
Q.  15.  70;   lO.Jur.  100. 

430 


Ch.  V[I.  S.  8.]  ATTORNMENT.  *268 

ancy,  or  fresh  terms,  but  merely  substituting  one  landlord  for 
another,  does  not  require  a  stamp  either  as  a  lease  or  as  an 
agreement  (v).  ,  An  instrument  in  these  terms :  "  I  hereby 
certify  that  I  remain  in  the  house  No.  8,  Swinton 
Street,  belonging  to  W.  G.,  on  sufferance  *  only,  and  [*268] 
agree  to  give  him  possession  at  any  time  he  may 
require : "  was  held  not  to  amount  to  an  agreement  for  a 
tenancy  so  as  to  require  a  stamp  (:r). 

Effect  of  attornment  as  an  estoppel.  —  An  attornment  gen- 
erally estops  the  party  making  it  from  denying  the  title  of 
the  person  to  whom  the  attornment  is  made  (?/).  Thus 
where  an  attornment  was  made  to  the  claimants  in  an  eject- 
ment, who  derived  their  title  under  a  will,  the  tenant  was 
held  to  be  estopped  from  contending  in  a  subsequent  action 
that  upon  the  true  construction  of  the  will  the  claimants 
had  no  title  (2),  although  on  a  previous  occasion  it  had  been 
decided  that  the  tenant  might  show  the  attornment  to  have 
been  made  by  mistake  and  under  suspicious  circumstances, 
and  that  it  had  not  been  acted  on  for  seven  years,  and  a  con- 
veyance to  himself  made  by  the  real  owner  (a).  A.  and  B., 
tenants  in  common,  having  agreed  to  divide  their  property, 
and  that  Blackacre  should  belong  to  A. ;  the  occupier  of 
Blackaare,  who  after  this  agreement  had  paid  his  whole  rent 
to  A.,  cannot  in  an  ejectment  brought  against  him  by  A. 
object  that  the  partition  deed  between  A.  and  B.  is  not  exe- 
cuted (&).  Where  a  tenant  had  attorned  and  paid  rent  to  a 
devisee  of  the  landlord,  and  no  fraud  or  misrepresentation 
had  been  practised  towards  him,  it  was  held  that  he  could 
not  afterwards  dispute  the  devisee's  title  by  evidence  show- 
ing that  the  testator  was  incompetent  to  make  a  will  ((?). 
Attornment  by  tenant  to  heir  upon  threat  of  eviction  is  tan- 
tamount to  entry  by  the  heir,  and  prevents  the  tenant  from 

(y)  Doe  d.   Linsey  v.  Edwards,  5  (a)  Gravenor  v.  Woodhouse,  1  B'mg. 

A.  &  E.  95,  102;   Doe  d.  Wright  r.  38. 

Smith,  8  A.  &  E.  255.  (6)  Doe  d.  Pritchctt  v.  Mitchell,  1 

(x)  Barry  i-.  Goodman,  2  M.  &  W.  Brod.  &  B.  11 ;  3  Moo.  219;  and  see 

768.  Arden  v.  Sullivan,  14  Q.  B.  832. 

(y)  Cole  Ejec.  218,  219,  230.  (c)  Doe   d.  Marlow   v.  Wiggins,  4 

(2)  Gravenor  u.  Woodhouse,  2  Bing.  Q.  B.  367. 
71. 

431 


*269    ASSIGNMENT,    BANKRUPTCY,    DEATH,    ETC.    [Cii.  VII.  S.  8. 

afterwards  disputing  his  title  (c?).  So,  where  a  tenant  of 
glebe  land,  has  attorned  and  paid  rent  to  the  subsequent 
incumbent,  he  will  not  be  permitted  to  dispute  his  title  by 
evidence  of  a  simoniacal  presentation  of  the  incumbent  (e). 
Sometimes,  however,  a  tenant  who  has  attorned  will  be 
allowed  to  prove  that  such  attornment  was  procured  by 
fraud,  covin  or  misrepresentation,  or  that  it  was  made  by 
mistake  and  in  ignorance  of  material  facts,  and  that  the  per- 
son to  whom  the  attornment  Avas  made  really  had  no  title  (/). 
Thus  where  A.,  being  tenant  to  B.  who  died,  afterwards  at- 
torned to  C.  as  heir  of  B.,  in  ignorance  that  C.'s  title  as  heir 
was  disputed:  held,  that  A.  was  not  thereby  estopped  from 
showing  that  C.  really  had  no  title  to  the  property,  and  that 
the  attornment  to  him  was  a  mistake  (^).     Where  a  person, 

having  possession  of  land  under  a  good  title,  became 
[*269]  tenant  and  paid  rent  to  a  stranger,  it  was  *held,  that 

he  was  not  estopped,  after  such  tenancy  had  deter- 
mined and  before  he  had  given  up  possession,  from  setting  up 
his  own  prior  title  in  an  ejectment  by  his  lessor  (/t).  But  it 
is  to  be  observed  that  in  all  such  cases  the  onus  of  proof  as 
to  the  title,  &c.,  is  shifted  and  thrown  upon  the  person  who 
attorned,  and  he  must  (amongst  other  things)  disprove  the 
title  of  the  person  to  whom  such  attornment  was  made, 
which  is  sometimes  impracticable  or  very  difficult. 

What  amounts  to  an  attornment.  —  Payment  of  rent  by  a 
tenant  to  his  landlord,  after  the  title  of  the  latter  had  ex- 
pired, and  after  the  tenant  had  received  notice  of  an  adverse 
claim,  does  not  amount  to  an  acknowledgment  of  title  in  the 
landlord,  or  to  a  virtual  attornment ;  uidess  at  the  time  of 
such  payment  the  tenant  heard  the  precise  nature  of  the 
adverse  claim,  or  how  the  landlord's  title  had  expired  (/). 
Where  A.  was  tenant  of  premises  under  a  lease  granted  by 

(d)  Hill  V.  Saunders,  4  R.  &  C.  520.  (r/)  Gropory  r.  Doidse,  .1  I5in<T.  474. 

(e)  Cooke  v.  Loxley,  5  T.  R.  4.  (/<)  Accidental     Deatli     Insurance 
(/)  Rogers   v.    Pitcher,  6   Taunt.       Co.  v.  Mackenzie,  9  W.  R.  713. 

202;    Cornish    v.  Searall,  8  B.  &  C.  (/)  Fenner  v.  Duploc,  2  Hiufr.  10; 

471 ;  Doe  d.  Plcvin  v.  Brown,  7  A.  &  Enfjland  v.  Slade,  4  T.  R.  082  ;  Greg- 

E.  447  ;  Brook  v.  Bif^fis,  2  Binfj.  N.  C.  ory  i-.  Doidge,  3  Binp.  474  ;  Claridge 

672  ;   Hugiies  v.  Hughes,  10  M.  &  W.  v.  Mackenzie,  4  M.  &  G.  143. 
703. 

432 


Cn.  VII.  S.  9.]  ATTORNMENT.  *270 

B.,  and  a  sequestration  issued  out  of  the  Court  of  Chancery 
against  the  latter;  and  A.  then  signed  the  following  instru- 
ment :  "  I  hereby  attorn  and  become  the  tenant  to  C.  and  D., 
two  of  the  sequestrators  named  in  the  writ  of  sequestration 
issued  in  the  said  suit  in  Chancery,  and  to  hold  the  same  for 
such  time  and  upon  such  conditions  as  may  be  subsequently 
agreed  upon : "  it  was  held,  that  this  was  an  agreement  to 
become  tenant,  and  operated  as  an  attornment ;  and  also  that 
as  A.  had  not  received  possession  from  C.  and  D.  he  was  not 
estopped  by  the  attornment  from  disputing  their  title  to  the 
premises  (^k).  But  an  instrument  whereby  the  tenant  merely 
puts  one  person  in  the  place  of  another  as  his  landlord,  and 
continues  to  hold  under  the  same  terms  and  conditions  as 
before,  is  a  mere  attornment  and  not  an  agreement,  and  is 
evidence  of  ownership  at  the  time  it  was  executed  against 
future  occupiers,  though  they  do  not  claim  through  the  per- 
son who  signed  it  (/).  If  an  attornment  be  relied  on  to 
defeat  the  Statute  of  Limitations  it  must  be  made  before 
action  brought  Qm'),  and  tlie  defendant  may  contend  that  the 
party  making  such  attornment  did  so  without  any  intention 
to  admit  the  party's  right  or  title,  and  in  ignorance  that  it 
would  have  that  effect  (w). 


*  Sect.  9.  —  Writs  of  Execution.  [*270] 

(a)  Fieri  Facias. 

Seizure  of  term  under  fi.  fa.  —  Under  the  writ  of  fieri  facias 
the  sheriff  may  levy  the  debt  on  the  lands  or  goods  of  the 
debtor,  and  may  therefore  seize  a  leasehold  interest.^ 

(k)  Cornish   v.  Searall,  8  B.  &  C.  (m)  Doe  d.  Mee  v.  Leatherhead,  4 

471 ;  but  see  Hall  t'.  Butler,  10  A.  &  A.  &  E.  784. 

E.  204.  (n)  Doe  d.  Linsey   i'.  Edwards,    5 

(/)  Doe  d.  Linsey  v.  Edwards,  5  A.  A.  &  E.  95,  106;  Kearny  v.  Genner, 

&  E.  95  ;  Doe  d.  Wright  c.  Smith,  8  cited  Cole  Ejec.  231. 
A.  &E.  255;  Cole  Ejec.  229. 

1  Seizure  on  execution.  —  The  officer  may  levy  by  extent  upon  a  life 
estate  as  realty,  Chapman  r.  Gray,  15  Mass.  439;  but  cannot,  upon  a  term  for 
years,  because  it  is  a  chattel,  Chapman  v.  Gray,  15  Mass.  439,  unless  made 

433 


*270    ASSIGNMENT,    BANKRUPTCY,    DEATH,   ETC.     [Ch.  VII.  S.  9. 

Yearly  tenancy.  — •  He  may  also  seize  the  interest  of  a  ten- 
ant under  a  tenanc}^  from  year  to  year  (o). 

Sheriff's  duty  on  executing  a  fi.  fa.  —  When  the  sheriff 
under  a  writ  of  lieri  facias  seizes  a  lease  (actually  or  con- 
structively) and  sells  the  term,  he  must  make  an  assignment 
of  it  by  deed.^  If  he  merely  puts  the  execution  creditor  in 
possession,  that  will  not  pass  the  term  and  the  debtor  may 
recover  in  ejectment  Cp^.  Seizure  by  a  sheriff  of  a  lease  of 
a  debtor's  dwelling-house  does  not  vest  the  term  in  the 
sheriff,  but  it  remains  in  the  debtor,  even  though  sold  by 
public  auction,  until  after  the  sheriff  executes  an  assignment 
to  the  purchaser  (9').  If  the  sheriff  sells  the  term  before  the 
writ  is  returnable,  but  does  not  execute  the  assignment  to 
the  vendee  till  a  subsequent  period,  the  assignment  is 
valid  (r).  Any  such  assignment  may  be  made  by  the  under- 
sheriff  in  the  name  and  under  the  seal  of  office  of  the 
sheriff"  (6-).  Where  a  sheriff  takes  a  lease  and  fixtures  in 
execution,  he  must  sell  the  fixtures  separately,  if  he  cannot 
find   a    purchaser   for   the  whole  (0-     Where    an    outgoing 

(o)  Doe  (i.  Westniorel.Tnd  v.  Smith,  (r)  Doe  d.  Stevens  v.  Donston,  1  B. 

1  M.  &  R.  1:57.  &  A.  2.S0. 

(/>)  Doe  (/.  Hughes  r.  Jones,  9  M.  (s)  Doe  <J.  James  v.  Brawn,  5  B.  & 

&  W.  872;  1   Dowl.,  N.  S.  352;  Cole  A.  243;  cited  8  Q.  B.  1042. 
Ejcc.  669.  (0  Barnard  r.  Leigh,  1  Stark.  R. 

(7)  Playfair  v.  Musgrove,  14  M.  &  43. 
W.  239;  3  D.  &  L.  72. 

freehohl  by  -statute.  Terms  for  one  liundred  years  or  more,  whereof  fift}- 
years  remain  unexpired,  are,  for  certain  purposes,  declared  freeholds  in  Mas- 
sachusetts, and  may  be  levied  upon  as  real  estate.  Pub.  Sts.  Mass.  ch.  121, 
sec.  1. 

Terms  for  years  of  no  matter  how  long  duration  (unless  made  freeholds) 
may  he  sold  on  execution  as  chattels.  Lessee  of  Bisbee  r.  Hall,  3  Ohio,  449, 
405;   People  r.  Westervelt,  17  Wend.  (N.  Y.)  (574. 

^  Sheriff's  deed. — The  purchaser  of  a  lease  at  judicial  sale  is  liable  botli 
for  the  i)reuiium  {)aid  for  it  and  for  the  rent  for  the  unexpired  term.  D'Aquin 
V.  Arniaiit,  14  La.  An.  217;  Brinton  v.  Datas,  17  Id.  174;  Hayden  v.  Shiff, 
12  Id.  524  ;  Matter  of  Morgan  U.  K.  &  S.  S.  Co.,  32  Id.  371,  375,  370;  Leh- 
man V.  Dreyfus,  37  Id.  587.  If  lessee  iiay  subsequent  rent,  assignee  is  liable 
over  to  him,  Lehman  v.  Dreyfus,  37  La.  .An.  587,  588  (and  per  Manning,  J.); 
and  lessee's  creditors  may  garnish  it. 

He  is  not  liable  for  rent  between  the  sale  and  date  of  the  deed.  Thomas 
V.  Connell,  5  Pa.  St.  13. 

In  Wickersham  v.  Irwin,  14  Pa.  St.  108,  it  was  held  that  a  purchaser  who 
had  never  entered  possession,  but  had  given  the  lease  to  another  who  had,  was 
not  liable  for  rent  to  the  lessor. 

434 


Ch.VII.  S.  0.]     WRITS    OF   EXECUTION    (FIEHI   FACIAS).         *271 

tenant  has  agreed  to  assign  the  remainder  of  his  term,  the 
sheriff,  before  an  actual  assignment  made,  may  sell  the  term 
under  a  fi.  fa.  against  the  tenant,  and  put  upon  it  the  value 
agreed  to  be  given  by  the  incoming  tenant  (it). 

Equitable  Interest.  —  Before  the  Judicature  Act,  an  equi- 
table interest  in  a  term  could  not  be  seized  and  sold  under  a 
fi.  fa.  (a;),  but  it  would  seem  that  it  might  have  been  reached 
in  a  court  of  equity  (^),  and  that  the  effect  of  the  Judicature 
Act  is  to  render  such  an  interest  liable  to  execution  gen- 
erally, though  this  has  been  doubted  (z). 

Possession  under  fi.  fa.  —  When  the  sheriff  seizes  and  sells 
a  term  under  a  h.  fa.,  he  does  not  usually  put  the  purchaser 
into  actual  possession  of  the  property,  especially  if  there  be 
an  under-tenant  (a)  :  but  the  purchaser  is  left  to 
*  obtain  actual  possession  by  ejectment  (^>),  or  to  [*271] 
recover  the  rent  from  any  under-tenant  by  distress 
or  action  in  the  usual  manner  (e).  The  purchaser  becomes 
liable  to  the  rent  and  covenants  hi  the  lease  in  like  manner 
as  any  other  assignee  of  the  term  (c?).  But  the  .lessee  con- 
tinues liable  on  his  covenants  in  the  lease  to  pay  rent  and  to 
repair,  &c.,  notwithstanding  the  term  has  been  taken  from 
him  under  the  execution  (e),  in  like  manner  as  he  would 
have  done  had  he  executed  an  assignment  of  the  term  to  a 
purchaser,  in  which  case  he  would  liave  probably  had  the 
usual  covenant  of  indemnity  from  such  rent  and  covenants. ^ 

(m)  Sparrow   v.  Earl  of   Bristol,  1  {z)  See  Atkinson  on  Sheriff. 

Marsh.  10.  (a)  Taylor  v.  Cole,  3  T.  R.  295;  1 

(x)  Scott  V.  Scholey,  8  East,  467;  Smith  L.'c.  115  (6th  ed.)  ;  Kumball 

Metcalfe  v.  Scholey,  2  Bos.  &  P.,  N.  v.  Murray,  3  T.  R.  298  ;  Miller  v.  Par- 

R.  461;  Burden  v.  Kennedy,  3  Atk.  nell,  2  Marsh.  78. 
739;  Martindale  v.  Bootli,  3  B.  &  Ad.  (6)  Cole  Ejec.  569. 

498;    The    Mayor,    &c.,   of    Poole    ;;.  (c)  Lloyd  v.  Davies,  2  Exch.  103; 

Whitt,  15  M.  &  W.  571.  Mayor,  &c.,  of  Poole  v.  Whitt,  15  M. 

(y)  Gore  v.  Bowser,  3  Sni.  &  Giff.  &  W.  571. 
1 ;  24  L.  J.,  Ch.  316,  440 ;  Partridge  (^0  1  I^oug.  184. 

V.  Foster,  10  Jur.,  N.  S.  741 ;  12  W.  (0  Auriol  d.  Mills,  4  T.  R.  98 ;  1 

R.  1127.  Smith  L.  C.  782  (6th  ed.). 

^  Purchase  of  reversion.  —  The  purchaser  of  a  reversion  at  judicial  sale 
is  entitled  to  the  rents  only  from  the  date  of  acknowledgment  qf  sheriff's 
deed,  Scheerer  v-.  Stanley,  2  Rawle  (Pa.)  276;  Bank  of  Penn.  v.  Wise,  3 
Watts  (Pa.)  394  ;  Braddec  r.  Wiley,  10  Id.  362  ;  and  in  Farmers  &  Mechanics' 
Bank  v.  Ege,  9  Id.  436,  it  was  held  that  rent  paid  in  advance,  according  to  the 

435 


*272    ASSIGNMENT,   BANKRUPTCY,   DEATH,   ETC.    [Ch,  VII.  S.  9. 

(b)  Elegit. 

"Writ  of  elegit.  —  Under  a  writ  of  elegit  the  sheriff,  instead 
of  levying,  delivers  to  the  creditor  who  elects  this  remedy  in 
preference  to  a  levy,  the  lands  of  the  debtor.  The  Statute 
of  Westminster  2  from  which  the  writ  is  derived,  provided 
for  the  delivery  of  "  all  the  chattels "  and  half  the  land. 
The  Bankruptcy  Act,  1888,  s.  146,  enacts  that  a  writ  of 
elegit  "  shall  not  extend  to  goods,"  but  it  is  submitted  that 
a  leasehold  interest  does  not  come  within  the  expression 
''  goods  ''  in  that  section.  The  statute  1  &  2  Vict.  c.  110,  s. 
11,  authorizes  the  delivery  under  an  elegit  of  all  the  lands 
instead  of  half  only.  The  words  of  this  section,  which 
appear  to  include  leaseholds  (/),  are  that  the  sheriff  may 
''  make  and  deliver  execution  unto  the  party  in  that  behalf 
suing  of  all  such  lands,  tenements,  tithes,  rents,  and  heredit- 
aments, including  lands  and  hereditaments  of  copyhold  and 
customary  tenure,  as  the  person  against  whom  execution  is 
so  sued,  or  any  person  in  trust  for  him,  shall  have  been  seised 
or  possessed  of  at  the  time  of  entering  up  the  said  judg- 
ment (//),  or  at  any  time  afterwards,  or  over  which  such 
person  shall  at  the  time  of  entering  up  such  judgment,  or  at 
any  time  afterwards,  have  any  disposing  power  which  he 
might,  without  the  assent  of  any  other  person,  exercise  for 
his  own  benefit"  (K). 

The  same  land  cannot  be  extended  under  two  or  more 
elegits,  nor  can  the  sheriff  be  entitled  to  poundage  under 
more  than  one  of  such  writs  (i).     But  if  two  or  more  elegits 

be  delivered  to  the  sheriff,  he  should  execute  and  give 
[*272]  prioi'ity  to  that  which  was  first  delivered  to  *him, 

and  return  to  the  otlier  that  he  has  not  delivered  the 

(/)  See  Kolleston  r.  Morton,  18  M.  subsequent  hnuci  Jlcle  purt-liasers  ami 

&  W.  at  p.  182,  decided  on  the  Irish  niortgafjees  will  not  be  affected,  uii- 

Act,  3  &  4    Vict.  c.  105 ;    Harris    v.  less  the  judjjment,  &c.,  be  duly  regis- 

Davidson,  1.5  Sim.  at  p.  1. "58,  decided  tered.     See  ;)o.s7,  272. 

on  8.  13  of  1  &  2  Vict.  c.  110.  (h)  1  &  2  Vict.  c.  110,  s.  11. 

((/)  The    estates    and    interests    of  •       (;)  Carter  r.  Hughes,  2  H.  &  N.  71 1. 

contract  for  current  year,  coidd  not  be  collected  over  again,  though  otherwise 
by  statute,  if  it  had  been  voluntarily  paid. 

'4^0 


Ch.  VII.S.  9.]         WHITS   OF   EXECUTION    (ELEGIT).  *272 

land  to  the  plaintiff  by  a  reasonable  price  and  extent,  the 
same  having  been  already  extended  and  delivered  to  A.  B. 
under  a  writ  of  elegit  dated,  &c.,  which  had  previously  been 
delivered  to  him  to  be  executed  according  to  law. 

The  sheriff  does  not  usually  deliver  actual  possession  of 
the  property  to  the  execution  creditor :  but  it  seems  that  he 
may  lawfully  do  so  where  the  debtor  himself  is  in  occu- 
pation (^).  Tenants  of  the  debtor  cannot  be  turned  out  of 
possession  under  an  elegit  (^).  The  writ  and  inquisition 
thereon,  when  returned  and  filed,  operate  only  as  an  assign- 
ment of  the  reversion ;  and  therefore  the  judgment  creditor 
cannot  maintain  ejectment  against  the  tenants  in  possession 
until  after  their  respective  terms  have  expired  or  been  duly 
determined  by  notice  to  quit  or  otherwise  (m).  But  he 
may,  like  any  other  assignee  of  the  reversion,  sue  or  distrain 
for  the  rent  which  becomes  due  after  the  filing  of  the  writ 
and  the  return  thereto,  and  that  without  any  previous  attorn- 
ment by  the  tenant  (ti),  provided  the  writ  and  inquisition  be 
valid,  but  not  otherwise  (o).  He  is  not  entitled  to  any  rent 
which  became  due  before  the  inquisition,  although  after  the 
delivery  of  the  writ  to  the  sheriff  (j^).  He  may  give  a  ten- 
ant such  notice  to  quit  as  the  debtor  himself  might  have 
given,  and  afterwards  maintain  ejectment  (^q).  If  the  ten- 
ancy commenced  after  the  judgment  was  entered  up  and 
duly  registered,  an  ejectment  may  be  maintained  against 
such  tenant  without  previous  notice  to  quit  (r).  So  if  the 
debtor  himself  is  in  actual  possession  (s). 

When  the  debt  and  costs  have  been  satisfied,  and  that 
appears  upon  an  account  taken  by  the  master,  the  court  will 

(Jc)  Rogers    v.    Pitcher,   0    Taunt.  (p)  Sharp  v.  Key,  8  M.  &  W.  379; 

206;  Chatfield  v.  Parker,  8  B.  &  C.  9  Dowl.  770. 
543.  (f/)  Cole  Ejec.  566. 

(/)  Taylor  v.  Cole,  3  T.  R.  295.  (r)  Doe  d.  Putland  v.  Hilder,  2  B.  & 

(w)  Doe  (I.  Da  Costa  v.  Wharton,  A.  782;  Doe  d.  Evans  v.  Owen,  2  C. 

8  T.  R.  2 ;  Cole  Ejec.  566.  &  J.  71 ;  but  see  27  &  28  Vict.  c.  112, 

(n)  Lloyd  v.  Davies,  2  Exch.  103;  s.  I,  post. 
Ramsbottom  v.  Buckhurst,  2  M.  &  S.  (s)  Doe    d.    Parr   v.  Roe,   1  Q.  B. 

565.  700 ;  Doe  d.  Roberts  v.  Parry,  13  M. 

(o)  Arnold  v.  Ridge,  13  C.  B.  745;  &  W.  356;  2  D.  &  L.430 ;  Cole  Ejec. 

Cole  Ejec.  566.  566. 

437 


*273    ASSIGNMENT,    BANKRUPTCY,    DEATH,    ETC.    [Cii.  VII.  S.  9. 

order  possession  of  the  land  to  be  restored  to  the  defend- 
ant (0- 

Registration  of  judgments,  &c.  —  Judgments,  &C.,  will  not 
affect  lands  situate  in  ^Middlesex  or  Yorkshire,  as  against 
bona  fide  purchasers  and  mortgagees,  until  a  memorial  thereof 
is  registered  pursuant  to  the  statutes  in  that  behalf  (m).  In 
those  and  also  in  other  counties,  judgments,  &c.  must  be 
reoistered  -svith  the  senior  master  of  the  Common  Pleas,  and 
execution  thereon  actually  executed  and  registered,  other- 
wise they  will  not  prejudice  subsequent  bona  fide 
[*273]  purchasers  and  mortgagees,  with  or  without  *  notice 
of  the  judgment  (a-).  In  the  counties  palatine  of 
Lancaster  and  Durham,  judgments,  &c.  must  be  registered 
with  the  proper  officers  of  the  courts  there  (i/),  and  execu- 
tion thereon  actually  executed  and  registered. 

By  23  &  24  Vict.  c.  38,  s.  1,  "  no  judgment,  statute  or  recog- 
nizance to  be  entered  tip  after  the  pasmig  of  this  act  (z)  shall 
affect  any  land  (of  whatever  tenure)  as  to  a  bona  fide  pur- 
chaser for  valuable  consideration,  or  a  mortgagee  (whether 
such  purchaser  or  mortgagee  have  notice  or  not  of  any  such 
judgment,  statute  or  recognizance),  unless  a  writ  or  other 
due  process  of  execution  of  such  judgment,  statute  or  recog- 
nizance shall  have  been  issued  and  registered  as  hereinafter 
is  mentioned  before  the  execution  of  the  conveyance  or  mort- 
gage to  him,  and  tlie  payment  of  the  purchase  or  mortgage 
money  by  him :  provided  always  that  no  judgment,  statute 
or  recognizance  to  be  entered  up  after  the  passing  of  this  act  (a) 
nor  any  writ  of  execution  or  other  process  thereon,  shall 
affect  any  land,  of  whatever  tenure,  as  to  a  bona  fide  pur- 
chaser or  mortgagee,  although  execution  or  other  process 
shall  have  issued  thereon  and  have  been  duly  registered, 
unless  such  execution  or  other  process  shall  be  executed  and 

(0  Trice  v.  Yarney,  3  B.  &  C.  733 ;  (//)  18  &  19  Vict.  c.  15. 

HukIk-s  v.  Lumloy,  4  E.  &  H.  274.  (c)  2:5rd  July,  1860.     If  entered  up 

(«)  Benham  v.  Keane,  31  L.  J.  Cli.  after  29tii  July,  1804,   see   27  &  28 

129;  8  Jur.,  N.  S.  604.  Vict.  c.  112,  s.  1. 

f.r)  1  &  2  Vict.  c.  110,  8.  19;  2  &  3  {a)  23r(l  July,  1800.     If  entered  up 

Vict.  c.   11  ;  3  &  4  Vict.  c.  82;   18  &  after  29th    July,   1804,  see   27  &  28 

19  Vict.  c.  15 ;  22  &  23  Vict.  c.  ,35,  s.  Vict.  c.  112,  s.  1. 
22 ;  23  &  24  Vict.  c.  38,  supra ;  27  & 
28  Vict.  c.  112. 

438 


Cii.  VII.  S.  10.]  BANKRUPTCY   OF    LESSOR.  *274 

put  in  force  within  three  calendar  months  from  the  time  when 
it  was  registered." 

By  27  &  28  Viqt.  c.  112,  s.  1,  "  no  judgment,  statute  or  recog- 
nizance to  be  entered  up  after  the  jiassing  of  this  act  (/>)  sliall 
affect  any  hmd  (of  whatever  tenure)  until  such  land  sliall 
have  been  actually  delivered  hi  execution  by  virtue  of  a  writ 
of  elegit  or  other  lawful  authority,  in  pursuance  of  such 
judgment,  statute  or  recognizance."  And  by  sect.  3,  the 
writ  itself  must  be  registered  pursuant  to  23  &  24  Vict.  c. 
38;  after  which  a  summary  remedy  is  given  by  j)etition  to 
the  Chancery  Division  of  the  High  Court  for  a  sale  of  the 
debtor's  interest  in  the  land  (<?).  This  act  includes  equitable 
interests  (d^  and  since  the  Judicature  Act  it  has  been  unnec- 
essary for  a  creditor,  seeking  to  obtain  equitable  execution 
thereunder  upon  an  equitable  interest,  previously  to  sue  out 
an  elegit  (e) ;  the  appointment  of  a  receiver  is  a  delivery  in 
execution  by  lawful  authority  (/). 


*Sect.  10.  —  Bankruptcy  of  Lessor}  [*274] 

Reversion  vests  in  trustees.  —  The  reversion  in  lands  held 
by  lease  under  a  landlord  becoming  bankrupt  will  under  the 
term  "property"  vest  in  his  trustees  in  bankruptcy  (^),  to 
whom  there  will  be  an  assignment  of  the  reversion  by  opera- 
tion of  law.2  It  is  conceived  that  the  statute  34  Hen.  8, 
c.  34  (A),  whereby  the  assignee  of  the  reversion  may  sue  the 

(b)  29th  July,  1864.  R.  L.   R.,   13  Ch.    D.  252 ;  49  L.  J. 

(c)  Sects.   4,    5,   6 ;   see   also  Jud.       Bank.  7,  C.  A. 
Act,  1873,  s.  34.  (/)  lb. 

(c?)  Halton  v.  Haywood,  L.  R.,  9  {g)  Bankruptcy  Act,   1883,   ss.  64, 

Ch.  229.  168. 

(e)  Evans,  Ex  parte,  Watkins,  In  (/i)  Ante,  p.  252. 

1  The  last  United  States  Bankruptcy  Act  was  the  act  of  March  2,  1867. 
This  was  amended  June  22,  1874,  and  repealed  June  7,  1878. 

The  prior  acts  were  the  acts  of  1800  and  1841. 

The  Enp;lish  Bankruptcy  Acts  of  1869  and  1883  have  some  material  varia- 
tions not  found  in  the  American  acts.  Tlie  subject  of  bankruptcy  is  still 
important  liere,  owing  to  the  existence  of  insolvency  laws  and  liability  to  a 
re-enactment  of  a  bankruptcy  law  at  any  time. 

2  The  reversion  passes  to  the  assignee,  subject  to  the  lease.  Meador  v. 
Everett,  10  Nat.  Bankr.  Reg.  421. 

439 


*274    ASSIGNMENT,   BANKRUPTCY,   DEATH,   ETC.    [Ch.  VII.  S.  11. 

lessee  on  the  covenants,  does  not  apply  to  such  an  assignment, 
but  whether  this  be  so  or  not  is  of  little  consequence,  inas- 
much as  by  sect.  57  of  the  Bankruptcy  Act,  1883,  trustees  in 
bankruptcy  may  bring  or  defend  any  action,  or  other  legal 
proceeding,  relating  to  the  property  of  the  bankrupt. 

The  Bankruptcy  Act  contains  no  special  provisions  as  to 
the  tenants  of  a  bankrupt.  In  the  possible  event  of  a  rever- 
sion binding  the  landlord  to  an  act  so  onerous  as  to  make  it 
worthless  in  the  hands  of  the  trustees,  they  may  disclaim  it 
as  being  "land  burdened  with  onerous  covenants"  under 
sect.  55  of  the  act  (Q.^  Under  sect.  23  of  the  Act  of  1869, 
the  reversion,  like  any  freehold  estate,  would  probably,  on 
disclaimer,  have  vested  in  the  Crown  (y),  but  by  sect.  55, 
sub-sect.  6  of  the  Act  of  1883  (/c)  the  court  ma}-  make  a 
vesting  order  of  any  disclaimed  property,  and  a  tenant  would 
no  doubt  have  a  locus  standi  to  apply  to  have  such  a  vesting 
order  made  in  his  favour. 

Bankruptcy  of  lessor  determines  tenancy  at  -will.  —  The  bank- 
ruptcy of  the  landlord  as  soon  as  known  to  a  tenant  at  A\ill 
operates  as  a  determination  of  the  will,  inasmuch  as  it  works 
an  assignment  of  the  reversion  (?). 

Bankruptcy  of  mesne  landlord.  —  If  tlie  lessor  be  himself  a 
tenant  having  created  a  sub-lease,  the  provisions  of  sect.  55, 
as  to  disclaimer,  and  especially  of  sub-sect.  2  and  6  thereof 
(post,  pp.  280,  281),  should  be  carefully  considered. 


Sect.  11.  —  Bankruptcy  of  Lessee. 

(a)  Re-entry  hy  landlord  for  forfeiture. 

Proviso  for  re-entry  lawful.  —  A  proviso  for  re-entry  by  the 
lessor  in  case  of  the  bankruptcy  of  the  lessee  has  for  a  long. 

(0  See  the  effect  of  this    section,  (k)  Posi,  p.  281. 

post,  270.  (/)  Doe  v.  Tliomas,  6  Ex.  854  ;  20 

(/)  Re  Mercer  and   Moore,  L.  \i.,  L.  J.,  Ex.  307. 
14  Ch.  D.  278. 

^  Assignee  is  not  hound  to  take  j)roperty  wliicli  is  hnrdensome.  Aniory  i;. 
Lawrence,  .3  Cliff.  52:> ;  (Jienn  v.  Howard,  05  Md.  40. 

If  the  interest  is  beneficial,  he  may  he  compelled  to  accept.  Exp.  Fuller, 
2  Story,  327. 

440 


Cii.VII.  S.  11.]  BANKRUPTCY   or   LESSEE.  *275 

time  been  comiuonly  inserted  in  leases ;  and  in  1787  it  was 
held  in  Roe  d.  Hunter  v.  Galliers  (m),  that  sueh  a  proviso 
was  perfectly  good.  Sueh  a  proviso,  in  all  except  building- 
leases,  is  at  the  present  day  perhaps  more  commonly  inserted 
than  not,  but  it  has  been  held  nevertheless  not  to  be 
a  "usual"  one  (w).  A  proviso  *  f or  re-entry  if  the  [*275] 
lessee  should  be  bankrupt  or  file  a  petition  in  liquida- 
tion, in  a  lease  executed  before  the  Act  of  1883,  may  be  put 
in  force  upon  the  presentation  of  a  petition  under  that  act  (o). 
A  condition  for  actual  occupation  by  the  tenant  may  be  put 
in  operation  if  trustees  in  bankruptcy  take  possession  and 
assign  to  a  purchaser  (jw)  and  so  may  the  ordinary  proviso 
for  re-entry  in  case  of  bankruptcy  notwithstanding  any  such 
assignment ;  but  if  the  proviso  be  merely  for  re-entry  in  case 
of  assignment  without  licence,  and  do  not  extend  to  bank- 
ruptcy, the  trustees  may  disregard  it,  and  assign  without  any 
licence  from  the  landlord  (9'). 

Ejectment  on  proviso  for  re-entry  ;  no  relief.  —  The  proviso 
for  re-entry  in  case  of  bankruptcy  may  be  put  in  force  by 
peaceable  entry  or  by  action  of  ejectment,  and  this  is  one  of 
the  cases  in  which  the  notice  ordinarily  required  by  sect.  14 
of  the  Conveyancing  Act  (r)  is  expressly  dispensed  with  by 
that  section  (s).  But  there  is  no  obligation  upon  the  land- 
lord to  announce  either  to  the  bankrupt  or  his  trustees 
whether  he  intends  to  take  advantage  of  the  proviso  or  not. 
If,  however,  after  the  act  of  bankruptcy  or  adjudication  or 
other  act  to  which  the  proviso  applies,  he  accept  or  distrain 
for  rent  with  knowledge  of  such  act,  he  will  have  waived  the 
forfeiture  (f)  and  the  trustees  will  have  become  his  tenants, 
they,  however,  on  their  part  being  at  liberty  to  disclaim  the 
lease  Avithin  the  time  and  under  the  restrictions  limited  by 
sect.  55  of  the  Act  of  1883. 

(7«)  2  T.  R.  133.     The  lease  was  {p)  Doe  d.  Lockwood  v.  Clarke,  8 

an  agricultural  one.  East. 

(»)  Hyde  v.  Warden,  L.  R.,  3  Ex.  {q)  Doe  v.  Bevan,  3  M.  &  S.  353, 

D.  72,  and  see  ante,  122.  and  post,  p.  276. 

(o)  Gould,  Ex  parte.  Walker,  In  re,  (?•)  Post,  p.  330. 

L.  R.,  13  Q.  B.  D.  454  ;  51  L.  T.  3G8;  (s)  See  Gould,  Ex  parte,  L.  R.,  13 

B.  R.  168.  Q.  B.  D.  454. 

epost,  Ch.  VIII.  Sect.  5. 

441 


*276    ASSIGNMENT,    BANKRUPTCY,    DEATH,    ETC.  [Cii.  VII.  S.  11. 

Effect  of  proviso  for  re-entry  on  building  materials.  —  It  has 
been  held  that  in  a  building  agreement  a  stipulation  for  for- 
feiture of  building  materials  in  event  of  the  bankruptcy  of 
the  builder  is  void  as  contrary  to  the  policy  of  the  law  of 
bankruptcy,  and  that  such  materials  pass  to  the  trustees  not- 
withstanding the  stipulation  (h). 

Tenant-right.  —  It  has  not  been  expressly  decided  whether 
a  "  tenant-right "  to  allowances  for  seed  and  labour,  &c., 
under  a  custom  of  the  country  passes  to  trustees  in  bank- 
ruptcy upon  a  proviso  for  re-entry  in  case  of  bankruptcy. 
The  landlord  is  entitled  to  emblements  in  such  a  case  (a:) 
and  in  Silcock  v.  Farmer  (?/)  it  was  held  by  the  Court  of 
Appeal  that  a  stipulation  to  pay  for  hay  and  straw  grown  in 
the  last  year  of  the  term  at  the  expiration  of  the  term  applied 
only  to  an  expiration  by  effluxion  of  time,  and  not  to  a  deter- 
mination by  re-entry  for  forfeiture.  This  decision, 
[*276]  which  is  at  variance  in  principle  with  *  some  old 
authorities  (s)  would  it  is  conceived  have  the  effect 
of  preventing  a  tenant-right  under  a  custom  from  passing  to 
the  trustees,  but  a  right  to  allowances  under  the  Agricultural 
Holdings  Act  would  seem  to  be  given  them  by  sect.  61  of 
that  act. 

Fixtures.  —  Removable  fixtures  (a)  are  removable  during 
the  term  only  or  during  such  period  after  the  expiration  of 
it  in  which  the  tenant  continues  in  lawful  possession. 
Therefore  after  re-entry  for  forfeiture  by  bankruptcy  the 
trustees  have  no  right  to  enter  and  remove  the  fixtures  (i), 
unless  indeed  the  lease  contain  a  stipulation  for  their  removal 
by  the  bankrupt,  in  which  case  the  trustees  may  enter  and 
remove  within  a  reasonable  time  after  the  re-entry  by  the 


(h)  Ex  parte  Jay,  Re  Harrison,  L.  in    1817    that    a    right    to   way-going 

R.,  14  Ch.  I).  19;  42  L.  T.  GOO;    28  crops    under    a   lease  tlcterniined  hy 

W.  R.  449.  tlie  Lord    Clianccllor   under   tlie   re- 

(x)  See    Davis    v.    Eyton,  7    Ring.  pealed  49  (ieo.  .'?,  c.  121,  s.  10,  passed 

154,  and  Ch.  XX.,  Sect.  .3,  (<•).  to  assignees  in  bankruptcy. 

(//)  40  L.  T.  404;  C.  A.,  jmr  Lord  (a)  See  as  to  this,  ])ost,  Ch.  XVI. 

Coleridge,  C.  J.,  and  Brett  and  Ilolker,  Sect.  8. 
L.  J.  J.  (6)  See  Pugh  v.  Arton,  L.  R.,  8  Eq. 

(«)  See    Ex  parte    Maundrell,    Re  026. 
Drake,  1  Buck,  85,  in  which  was  held 

442 


Cn.  VII.  S.  11.]  BANKRUPTCY   OF    LESSEE.  *276 

landlord  (f)  or  at  any  rate  recover  them  from  the  landlord 
hy  action  (c?). 

(b)    Vesting  of  Lease  in  Trustees  in  Bankruptcy. 

Time  of  vesting.  —  If  the  lease  contain  no  proviso  of  re- 
entry in  case  of  bankruptcy,  or  if  it  contain  one,  and  the 
landlord  does  not  re-enter,  the  lease,  subject  to  the  right  of 
disclaimer  which  will  be  considered  presently,  vests  in  the 
oflicial  receiver  on  the  lessee  being  adjudged  bankrupt,  and 
in  the  bankrupt's  trustees  as  from  time  of  their  appoint- 
ment (e).  The  bankrupt's  option  to  claim  a  lease  passes  to 
his  trustees  (/)  and  so  does  his  contract  for  a  lease. 

Assignment  by  trustees.  —  Trustees  in  bankruptcy  may 
assign  the  lease  to  a  purchaser  without  any  licence  from  the 
landlord,  notwithstanding  that  it  contain  a  covenant  against 
assignment  (^)  ^  whether  such  covenant  be  with  the  lessee 
and  his  executors  merely  (A)  or  with  the  lessee  his  executors 
and  assigns  (j). 

Personal  liability.  —  They  may  also  assign  to  a  pauper  for 
the  mere  purpose  of  getting  rid  of  their  liability  (^)  upon 
the  covenants  in  the  lease,  which  liability  is  personal,  with  a 
right  to  be  indemnified  out  of  the  assets  (?). 

Tenant-right.  —  Set-off.  —  Trustees  can  claim  against  the 
landlord  at  the  expiration  of  their  own  tenancy  by  a  notice  to 
quit  all  that  the  bankrupt  tenant  could  have  claimed  against 
him,  and  the  landlord  cannot  set  off  against  a  claim  by  trus- 
tees for  allowances  by  custom  a  claim  of  his  own  for  rent 
due  from  the  tenant  before  the  bankruptcy  (>n). 

(c)  Stansfield  r.  Mayor  of  Ports-  (1-)  Hopkinson  v.  Lovoring,  11  Q. 
mouth,  i  C.  B.,  N.  S.  120.  B.  D.  (592. 

(d)  Gould,  Ex  parte,  Walker,  In  re,  (/)  Titterton  v.  Cooper,  L.  R.,  9  Q. 
supra,  note  (o).  B.  D.  473;  51  L.  J.,  Q.  B.  472;    46 

(e)  Bankruptcy  Act,  1883,  s.  54.  L.  T.  670; -30  W.  R.  866;  Onslow  v. 
If)  See   Buokland  v.  Papillon,  L.       Corrie,  2  Mad.  330. 

R.,2Cli.  67.  (?n)  AUoway   i-.    Steere,  L.   R.,  10 

((f)  Doe  V.  Bevan,  3  M.  &  S.  353.  Q.  B.  D.  22 ;  52  L.  J.,  Q.  B.  38 ;  47 

(h)  Doe  V.  Smith,  5  Taunt.  795.  L.  T.  333;  31  W.  R.  290. 
(i)  Doe  V.  Bevan,  ubi  supra. 

1  It  was  held  in  United  States  that  a  lease  non-assignable  without  consent 
was  cancelled  by  bankruptcy.  In  re  O'Dowd,  8  Nat.  Bankr.  Reg.  451 ;  In  re 
Breck,  12  N.  B.  R.  215. 

443 


*2T7   ASSIGNMENT,    BANKRUPTCY,   DEATH,    ETC.    [Ch.  VII.  S.  11. 

[*277]  *  Determination  of  trustees'  tenancy.  —  The  tenancy 
of  tlie  trustees  will  be  determinable  in  the  same  man- 
ner as  that  of  the  bankrupt  was,  i.e.,  by  expiration  of  a  lease, 
or  by  notice  to  quit  in  the  case  of  a  tenancy  from  year  to 
year,  given  by  either  the  trustees  or  the  landlord.  In  a 
large  number  of  cases,  however,  it  is  to  be  expected  that  the 
trustees  will  resort  to  the  peculiar  provisions  of  the  Bank- 
ruptcy Act,  and  determine  the  tenancy  by  "disclaimer"  (w). 

Surety  not  discharged.  —  A  surety  for  a  lessee  will  not  be 
discharged  by  his  trustee  taking  to  the  lease  (o). 

User  of  hay  and  straw.  —  It  was  provided  by  56  Geo.  3,  c. 
50  (j9),  s.  11,  that  "  no  assignee  of  any  bankrupt "  should  dis- 
pose of  any  hay,  straw,  grass  or  grasses,  turnips  or  other 
roots  or  any  other  produce  "  of  a  farm,  or  any  manure,  com- 
post, ashes,  seaweed  or  other  dressings "  intended  for  the 
farm  in  any  other  way  than  the  bankrupt  ought  to  have  dis- 
posed of  the  same,  if  no  commission  of  bankruptcy  had 
issued.  It  was  held  by  the  Court  of  Appeal  in  Lybbe  v. 
Hart  (pp^,  that  this  act  applied  to  a  trustee  in  bankruptcy 
under  the  Act  of  1869 ;  and  it  would  seem  also  to  apply  to  a 
bankrujjtcy  under  the  Act  of  1883,  so  that  a  trustee,  not- 
withstanding disclaimer,  is  not  entitled  to  sell  hay,  &c., 
which  is  subject  to  a  covenant  for  consumption  on  the  farm. 

(c)  Rescission  of  Lease. 

Rescission  of  lease.  —  Sect.  55,  sub-sect.  5,  of  the  Bank- 
ruptcy Act,  1883,  is  as  follows  :  — 

"  The  Court  may,  on  the  application  of  any  person  who  is 
as  against  the  trustee  entitled  to  the  benefit  or  subject  to  the 
burden  of  a  contract  made  with  the  bankrupt,  make  an  order 
rescinding  the  contract  on  such  terms  as  to  payment  by  or  to 
either  party  of  damages  for  the  non-performance  of  the  con- 
tract or  otherwise,  as  to  the  Court  may  seem  equitable,  and 

(n)  Sco  sub-s.  (d),  infra.  (/>/-)  L.  R.  29  Ch.  D.  8 ;  54  L.  J. 

(o)  Sec  Hardinji  v.  VrwcQ,  L.  K.,  0  Ch.  8(30;  52  L.  T.  G:}4.     S.  149  of  the 

Q.  B.  I).  2<S1  ;  51  I>.  A.,  Q.  B.  D.  515;  Act  of  188:1  is  siiiiihir  to  s.  119  of  the 

47  L.  T.  100;  .".1  W.  K.  42.  Act  of  18()9  in  i)rovi(liiiK  for  tlic  con- 

{p)  See   this    Act  at   length,  jwst,  struction  of  nets  milking  luontion  of 

Appendix.  a  "  commission  in  l);uiknii)tcy." 

444 


Ch.  VII.  S.  11.]  BANKRUPTCY   OF   LESSEE.  *277 

any  damages  payable  under  the  order  to  any  such  person 
may  be  proved  by  him  as  a  debt  under  the  bankruptcy." 

A  lease  would  seem  to  be  a  "  contract "  within  the  mean- 
ing of  this  sub-section. 

(d)  Disclaimer  of  Lease?- 

By  the  Bankruptcy  Act,  1869  (32  &  33  Vict.  c.  71),  all 
pre-existing  bankruptcy  acts  were  repealed.     Many  of  the 

1  The  Ia-V7  as  to  disclaimer  by  assignees  in  bankruptcy  in  the 
United  States.  — Tlie  decisions  uiuKt  the  former  United  States  Bankruptcy 
Acts  following  those  under  the  earlier  English  acts  (prior  to  tlie  English  act 
of  1809  and  the  present  English  act  of  188:])  held  that  disclaimer  was  not 
necessary  to  relieve  an  assignee  from  liability  for  rent  under  a  lease. 

An  assignee  was  held  not  liable  for  rent  accruing  subsequently  to  the 
bankruptcy,  unless  by  some  positive  act  he  had  accepted  the  lease,  and  lie  was 
allowed  a  reasonable  time  in  which  to  make  his  election.  Ex  parte  Houghton, 
1  Low.  554,  556  (and  see  whole  opinion  of  Lowell,  J.)  ;  Hoyt  v.  Stoddard,  2 
Allen  (Mass.)  442  ;  Re  Washburn,  11  N.  B.  K.  <)6  ;  In  re  Ives,  18  Id.  28;  In 
re  Lucius  Hart  Man.  Co.,  17  Id.  459;  In  re  Merrifield,  o  Id.  25;  In  re  Ten 
Eyck,  7  Id.  26;  In  re  Wheeler,  18  Id.  385;  Matter  of  Fowler,  8  Ben.  421  ; 
Matter  of  McGrath,  5  Id.  183, 

Mere  temporary  occupancy  (as  for  storage  or  removal  of  goods,  «5;c.)  was 
not  necessarily  an  acceptance  of  the  lease.  If  unreasonably  continued,  &c., 
of  course  it  would  be.  The  assignee  was  held  liable  in  a  reasonable  sum  for 
such  temporary  use,  whether  by  himself  or  by  the  marshal  or  otlier  officers  of 
the  court,  to  be  reimbursed,  if  beneficial  to  the  estate.  In  re  Walton,  1  N.  B. 
R.  557  ;  Matter  of  Fowler,  8  Ben.  421  ;  In  re  Hamburger  &  Frankel,  12  N.  B. 
.  R.277  ;  Matter  of  McGrath,  5  Ben.  183  &  5  N.  B.  K.  254  ;  In  re  Lucius  Hart 
Man.  Co.,  17  Id.  459  ;  In  re  Merrifield,  3  Id.  25  ;  In  re  Wlieeler,  18  Id.  385. 

The  assignee  became  personally  liable,  if  Iw  entry  and  occupation  or  other 
equivalent  act  he  accepted  the  lease.  In  re  Laurie,  4  N.  B.  II.  7  ;  In  re  Rose,  3 
Id.  03  ;  Ex  parte  Faxon,  1  Low.  404;  Buckner  v.  Jewell,  14  N.  B.  R.  280  ;  In 
re  Commercial  Bulletin  Co.,  2  Woods,  220 ;  In  re  Webb,  0  N.  B.  R.  302,  to  be 
reimbursed,  of  course,  out  of  the  funds  if  the  occupation  was  jiistifiable  under 
the  condition  of  the  estate. 

The  amount  paid  for  temporary  use  and  occupation  might,  7?e  Merrifield, 
.3  N.  B.  R.  25,  or  might  not.  Re  Lucius  Hart  Man.  Co.,  17  Id.  459,  be  at  the 
lease  rate ;  but  if  assignee  accepted  the  term,  he  took  it  subject  to  all  the 
accruing  rent,  and  not  merely  from  commencement  of  his  occupancy.  Ex 
parte  Faxon,  1  Low.  404. 

"  If  assignee  found  that  lease  was  not  a  beneficial  one  and  desired  to  occupy 
for  a  time,  but  not  to  take  the  lease  with  all  its  burdens,  it  was  his  duty  to 
make  some  definite  arrangement  with  the  landlord  "  (per  Bradley,  C.  J.,  in  Re 
Commercial  Bulletin  Co.,  2  Woods,  220),  and  this,  in  fact,  was  usually  done 
in  such  cases. 

The  time  allowed  for  making  a  decision  varied  according  to  circumstances. 
In  case  the  rental  was  large  the  election  should  be  speedy.  In  re  Laurie,  4 
N.  B.  R.  7 

445 


*278   ASSIGNMENT,   BANKRUPTCY,    DEATH,    ETC.     [Ch.  VII.  S.  11. 

earlier  acts  (^)  contained  certain  special  provisions  in  refer- 
ence to  the  case  of  a  bankrupt  tenant,  and  the  Act  of  1869 

contained  special  provisions  for  the  same  case,  the 
[*278]   *  material   difference   between  the  former  acts  and 

the  Act  of  1869  being,  that,  under  the  former  acts,  a 
lease  involving  obligations  which  might  exceed  in  value  the 
benefits  to  be  derived  from  it  did  not  vest  in  the  bankrupt's 
assignees  until  they  did  some  act  manifesting  their  accept- 
ance, whereas,  under  the  Act  of  1869,  all  leases  whatever, 
together  with  the  rest  of  the  bankrupt's  property,  vested  in 
the  trustees  until  they  did  some  act  manifesting  their  dis- 

(7)  See,  for  instance,  49  Geo.  3,  c.  &  13  Vict.  c.  106,  s.  145;  24  &  25 
121,  s.  10;  6  Geo.  4,  c.  10,  s.  75;  12       Vict.  c.  134,  s.  131. 

If  assignee  occupied  under  a  special  agreement  independent  of  the  lease,  it 
did  not  amount  to  an  acceptance.  In  re  Ten  Eyck,  7  N.  B.  R.  26 ;  In  re  Secor, 
18  P'ed.  Rep.  319. 

In  states  vvliere  distress  for  rent  existed,  the  landlord's  lien  upon  the  goods 
entitled  him  to  payment  in  full,  both  for  rent  in  arrears  and  for  that  subse- 
quently accruing ;  Longstreth  i\  Pennock,  9  Phila.  (U.  S.  C.  C.  E.  D.  Pa.) 
394 ;  in  re  Conmiercial  Bulletin  Co.,  2  NVooils,  220  ;  In  re  Bowne,  12  N.  B.  R. 
529. 

The  landlord's  claim  for  subsequentlj'  accruing  rent  was  not  a  provable 
claim  against  the  estate,  but  a  personal  claim  against  the  assignee,  E.t  parte 
Houghton,  1  Low.  554;  In  re  Commercial  Bulletin  Co.,  2  Woods,  220  (;jer 
Bradley,  C.  J.)  ;  Buckner  v.  Jewell,  14  N.  B.  R.  286,  rent  to  accrue  not  being 
held  to  be  a  contingent  debt.  Bosler  v.  Kuhn,  8  \V.  &  S.  (Pa.)  183;  Savory 
r.  Stocking,  4  Cush.  (Mass.)  607. 

Rent  in  arrears  at  the  date  of  the  bankruptcy  was  provable,  Ex  parte 
Houghton,  1  Low.  454  ;  Matter  of  Croney,  8  Ben.  64,  and  by  sec.  5071  of  the 
U.  S.  Rev.  Sts.,  was  apportionable  at  the  date  of  the  bankruptcy,  as  if  the 
same  grew  due  from  day  to  day. 

The  bankrupt  himself  renuiined  liable  for  the  after-accruing  rent,  and  was 
not  discharged  therefrom  by  discharge  in  insolvency  (Lowell,  J.,  in  Ex  parte 
Houghton,  1  Low.  554,  556  ;  Hendricks  v.  .ludah,  2  Caines,  25),  and  the  dis- 
charge relieved  him  only  from  liability  for  tiie  arrears.  Treadwell  v.  Marden, 
18  N.  B.  R.  353. 

A  sale  by  the  assignee  to  the  lessor  extinguished  the  term,  merging  it  in 
the  reversion.      Wliite  /•.  Gritting,  IS  N.  B.  1{.  '^<.)'^. 

Adoption  in  Massachusetts  of  English  bankruptcy  provisions.  — 
Provision.s  somewhat  similar  to  those  of  the  later  Englisli  Bankruptcy  Acts 
liave  been  adopted  in  the  insolvency  laws  of  Massachusetts.  It  is  provided 
by  Pub.  Sts.  ch.  157,  sec.  26  (Sts.  1879,  ch.  245,  sec.  1)  tliat  the  assignee  at 
any  time  may  disclaim  the  lease,  and  must,  upon  request  in  writing  of  either 
lessor  or  debtor,  within  twenty  days  thereafter,  by  written  instrument  filed  of 
record,  elect  eitlier  to  accept  or  disclaim. 

Tlie  debtor,  if  he  obtains  his  disciharge  in  insolvency,  is  discharged  also 
from  all  lial)ilily  under  the  ]ea.«e,  and  that  whether  assignee  disclaim  or  not.  If 
lessor  or  his  rei)repentalives  are  denmilied,  they  may  prove  a  claim  therefor. 

446 


Cii.  VII.  S.  11.]  BANKUUrTCY   OF   LESSEE.  *278 

claimer  (r).  The  Bankruptcy  Act,  1883  (40  &  47  Vict.  c. 
52),  which  repeals  and  re-enacts  with  material  amendments 
the  Acts  of  1869,  follows  the  same  principle  in  respect  to . 
leases,  and  brings  it  out  more  fully  by  limiting  a  time  within 
Avhich  a  disclaimer  is  allowed  to  be  operative.  The  many 
other  amendments  effected  by  the  Act  of  1883  are  chiefly 
directed  to  safeguarding,  mainly  through  the  discretionary 
power  of  the  Court  of  Bankruptcy,  the  interests  of  persons 
deriving  title  from  the  lessee.  The  subject-matter  dealt  with 
is  an  extremely  complicated  one,  and  the  imperfect  phrase- 
ology of  the  Act  of  1869  had  been  supplemented  by  very 
numerous  judicial  decisions,  occasionally  almost  legislative 
in  character. 

Effect  of  s.  23  of  Act  of  1869.  —  Shortly  put,  the  enactments 
of  sects.  23  and  24  of  the  Act  of  1869  were  that  the  trustee 
in  bankruptcy  might,  by  writing  under  his  hand,  disclaim  an 
onerous  lease,  and  that  upon  the  execution  of  such  disclaimer, 
the  lease  should  be  deemed  to  have  been  surrendered  on  the 
date  of  the  order  of  adjudication  ;  that  any  person  interested 
in  a  disclaimed  lease  might  apply  to  the  Bankruptcy  Court, 
which  might  order  possession  of  the  lease  to  be  delivered  up 
to  him,  or  make  such  other  order  as  to  the  possession  as 
might  be  just ;  that  any  person  injured  by  the  operation  of 
the  enactment  should  be  deemed  and  might  prove  as  a  cred- 
itor of  the  bankrupt  to  the  estate  of  the  injury ;  and  (sect. 
24)  that  the  trustee  should  not  be  entitled  to  disclaim  where 
for  not  less  than  twenty-eight  days  he  had  failed  upon  appli- 
cation by  any  interested  to  notify  whether  he  disclaimed  or 
not.  A  bankruptcy  rule  of  doubtful  validity  (.s)  (Rule  28  of 
1871)  prescribed  further  that  a  trustee  might  not  disclaim 
without  leave  of  the  court. 

Decisions  on  s.  23  of  Act  of  1869.  —  The  main  decisions  upon 
these  sections  amounted  in  effect  to  this  :  —  that  disclaimer 
of  a  lease  did  not  put  an  end  to  a  sub-lease  (t)  :  that  it  did 
not  prevent  the  lessor  horn  enforcing  against  a  sub-lessee 

(r)  See  Wilson  v.  Wallani,  L.  M.,  (.s)  See  Reed  v.  Harvey,  L.  R.,  5 

5  Ex.  1).  155;  49  L.  .1.,  Ex.  4;]7 ;  42       Q.  B.  D.  184. 
L.  T.  375;  28  W.  R.  507.  (/)  Smalley  v.  Hardinge,  L.  R.,  7 


Q.  B.  I).  524 ;  50  L,  J.,  Q.  B.  305. 


44" 


*279    ASSIGNMENT,   BANKRUPTCY,    DEATH,    ETC.    [Cn.  VII.  S.  11. 

the  remedies  of  distress  and  re-entry  derived  from  the 
lease  (?<)  :  that  if  the  bankrupt  were  assignee,  the  lessee 
remained  liable  on  the  covenants  (a-)  :  that  all  rights  of  the 
lessee  under  the  lease,  such  as  to  remove  fixtures,  be- 
[*279]  came  lost  to  the  trustee  (y/),  and  that  the  trustee,  *if 
neglecting  or  unable  to  disclaim,  was  personally  lia- 
ble on  the  covenants  as  from  the  date  of  his  appointment  (2). 

Act  of  1883,  s.  55.  —  The  55th  section  of  the  Act  of  1883  to  a 
great  extent  follows  the  principle  of  the  above  decisions,  but 
also  materially  amends  the  statute  law  of  the  subject. 

This  effect  of  this  section,  and  the  rule  of  court  there- 
under, which  are  printed  in  full  in  the  Appendix,  is  as  fol- 
lows :  — 

Disclaimer  by  leave.  —  Where  a  lease  is  onerous,  or  a  con- 
tract for  a  lease  is  unprofitable,  the  trustee  may,  with  leave 
of  the  court  having  jurisdiction  in  bankruptcy  (or  without 
such  leave,  if  the  bankrupt  has  not  assigned,  sub-let  or  mort- 
gaged the  lease,  and  if  the  rent  and  value  be  less  than  20Z., 
or  if  the  estate  is,  as  being  not  more  than  300?.  in  value, 
being  administered  summarily,  or  if  "  the  trustee  serves  the 
lessor  with  notice  of  his  intention  to  disclaim,  and  the  lessor 
does  not  within  seven  days  after  the  receipt  of  such  notice 
give  notice  to  the  trustee  requiring  the  matter  to  be  brouglit 
before  the  court "  («)),  by  writing  signed  by  him  disclaim 
such  lease  or  contract  for  lease. 

Contract  for  lease.  —  An  oral  lease  seems  to  be  clearly 
within  the  sub-section  under  the  words  "  unsaleable  prop- 
erty," and  also  a  contract  for  a  lease  under  the  words  "  un- 
profital)le  contract"  (6). 

Effect  of  disclaimer  without  leave.  —  A  disclaimer  without 
leave,  if  leave  be  required,  is  void  (c)  :  but  if  no  leave  was 
required,  the  court  has  no  power  over  the  trustee  in  the  mat- 
ter, either  to  review  his  decision,  or  to  order  him  to  pay  rent 

(u)  Ex  parte  'WaUon,  Be  Levy,  L.  {z)  Titterton  v.  Cooper,  supra  (/). 

R.  17  Cli.  D.  740;  50  L.  J.,  Ch.  657  («)   Rule  232,  ;)o.'i^  Appendix  A. 

4uL.  T.  1;  30  W.  R.  305.  (6)  See  Maughan,  In  re,  L.  R.,  14 

(r)  Hill  V.  East   and   West    India  Q.  B.  D.  050;  2  Morrell,  25. 

Dock  Co.,  L.  R.,  9  App.  Ca8.  448.  {<■)  Rule  232,  post,  Appendix  A. 

(y)  Ex   parte    Glegg,    lie    Latiiain, 
L.  R.,  V.)  Ch.  I).  7. 

448 


Cii.  VII.  S.  11.]  liANKUUPTCY   OF   LESSEE.  *280 

for  use    and   occupation    from  the    time    that  the  j)i"6uiises 
vested  in  him  ((/)• 

Limit  of  time  for  disclaimer.  —  The  disclaimer  must  he 
made  in  ordinary  cases  within  three  months  after  the  first 
appointment  of  a  trustee  ;  but  it  is  provided  that  "  where 
the  property  shall  not  have  come  to  the  knowledge  of  the 
trustee  within  one  month  after  such  appointmeJit,  he  may 
disclaim  at  any  time  within  two  months  after  he  became 
aware  thereof ;  "  and  this  time  may  be  extended  by  the  court 
either  before  or  after  the  expiration  thereof  upon  such  terms, 
if  any,  as  the  court  may  think  fit  to  impose,  under  sect.  105, 
sub-sect.  4  of  the  Act  (e). 

Restriction  on  disclaimer.  —  It  is  further  provided  that  the 
trustee  shall  not  be  entitled  to  disclaim  in  any  case  where 
he  has  been  applied  to  in  writing  by  any  person  interested 
to  decide  whether  he  will  disclaim  or  not,  and  he  has  for 
twenty-eight  days  after  such  application,  or  such  extended 
period  as  the  court  may  allow,  declined  or  neglected  to  give 
notice  whether  he  disclaims  or  not.  For  this  provision  to 
operate,  it  must  be  proved  that  the  application  was 
actually  delivered:  mere  proof  of  *  posting  it  will  [*280] 
not  be  enough  (/).  Leave  for  extension  ought  to 
be  applied  for  within  twenty-eight  days  (,^)  ;  but  the  exten- 
sion may  be  granted  afterwards  (A),  though  special  circum- 
stances should  be  shown  (^).  In  one  case,  vdiere  the  trustee 
did  not  signify  his  intention  as  required,  leave  to  disclaim 
■was  given  only  on  condition  of  payment  of  a  month's  rent  to 
the  landlord,  such  rent,  together  with  the  landlord's  costs,  to 
be  paid  by  the  trustee  personally  (A-). 

Leave  of  the  court.  —  Sub-s.  3.  —  By  Sub-sect.  3,  the  court 
may,  before  or  on  granting  leave  to  disclaim,  require  such 


(d)  Zcrfass,  Ex  parte,  Sandwell,  In  (fj)  See  Ex  parte  Levering,  Re 
re,  L.  R.,  14  Q.  B.  D.  960;  33  W.  R.  Jones,  L.  R.,  9  Ch.  586;  43  L.  J., 
523;  2  Morrell,  95.  Bank.  94. 

(e)  Foreman,  Er  parte.  Price,  Tn  re,  (h)  Banner  v.  Johnson,  L.  R.,  5 
L.  R.,  13  Q.  B.  D.  466  ;  33  W.  R.  139 ;  H.  L.  157  ;  40  L.  J.,  Ch.  730. 

1  Morrell,  153.  ()")  JE'.rpar^e  Harris,  7ie  Richardson, 

(/)  Reed  7'.  Harvey,  L.  R.,  5  Q.  B.  L.  R.,  16  Ch.  D.  613 ;  44  L.  T.  282. 
D.  184;  49  L.  J.,  Q.  B.  295;  42  L.  T.  (k)  Page,  In  re,  1  Morrell,  2871. 

511;  28  W.  R.  423. 

449 


*280    ASSIGNMENT,    BANKRUPTCY,    DEATH,    ETC.    [Ch.  VII.  S.  11. 

notices  to  be  given  to  persons  interested  and  impose  such 
conditions  of  granting  leave,  and  make  such  orders  with 
regard  to  fixtures,  tenant's  improvements  and  other  matters 
arising  out  of  the  tenancy  as  the  court  thinks  just. 

Leave  has  been  given  to  disclaim  an  expired  lease  (I).  If 
the  trustee  has  continued  to  occupy  the  premises  with  a  view 
to  the  benefit  of  the  estate,  or  if  his  occupation  has  in  fact 
produced  a  benefit,  in  either  case  there  will  be  a  reason  for 
awarding  compensation  to  the  landlord  (on^. 

Fixtures  and  tenant's  improvements.  —  It  had  been  held, 
under  sect.  23  of  the  Act  of  1869,  that  by  disclaimer  the 
trustee  lost  all  right  to  remove  fixtures  (w),  even  by  virtue 
of  an  express  stipulation  (o),  so  that  tlie  landlord  was  entitled 
as  against  the  trustee  to  fixtures  severed  after  bankruptcy, 
whether  severed  after  (p)  or  before  {q)  disclaimer;  and  a 
similar  rule  was  held  to  be  applicable  to  rights  in  connection 
with  acts  of  husbandry  derived  from  an  agricultural  lease  (r). 
Under  the  above  sub-section  3  of  sect.  55  of  the  Act  of  1883, 
the  court  appears  to  have  full  discretionary  power  to  order 
either  fixtures  or  compensation  to  be  given  by  an)-  party 
before  it  to  any  other  (s).  By  sect.  61  of  the  Agricultural 
Holdings  Act,  1883,  a  trustee  in  bankruptcy  is  included  in 
the  term  tenant,  and  appears  to  have  a  statutory  claim  to 
compensation  for  improvements  within  the  meaning  of  that 
act. 

As  to  user  of  hay  and  straw  where  there  is  a  covenant  to 
consume  on  the  premises,  see  ante,  p.  277. 

Effect  of  disclaimer.  —  Sub-s.  2.  —  Sub-sect.  2  provides  that 
disclaimer  shall  put  an  end  to  the  lease  as  between  the  lessor 

(0  Er  parte  Paterson,  7?f  Throck-  22;    39   L.   T.   458;    27   W.   P.   255 

morton,  L.   P.,   11   Ch.  D.  008;   Ex  (C.  A.). 

parte   Dyke,  lie   Morrish,  L.   P.,  22  (o)  Ex  parte   Glegg,    lie   Latham, 

Ch.  D.  410;   52  L.  J.,   Ch.  570;  48  L.  P.,  10  Ch.  D.  7. 

L.  T.  303;  31  W.  P.  278  (C.  A.).  (;0  Ex  parte   Stephens,  L.   P.,   7 

(m)   See  Ex  parte  Arnal,  Tie  Wilton,  Ch.  D.  127. 

L.  P.,  24  Ch.  D.  20  ;  40  L.  T.  221  ;  He  (7)  Er  parte  Prook,  supra  (n). 

Zappert,   1  Morrell,  72 ;    lie  Brooke,  (r)  Ex    parte    Dyke,    He    Morrish, 

lb.  82.  L.  P.,  22  Ch.  D.  410;   .32  L.  J.,  Cli. 

(n)    Ex  parte.   Brook,    fie    Poherts,  570;  48  L.  T.  303;  31  W.  P.  278, 

L.  R.,  10  Ch.  D.  100;  48  L.  J.,  Bank.  (.s)   See   Moser,  In    re,  1   Morrell, 

244. 

450 


Cii.  VII.  S.ll.]  BAN KIlUJ'TCy   OF   LESSEE.  *281 

and  the    bankrupt   or    liis    trnstee,  })ut   as  between 

*  the  lessor  and  the  bankrupt  or  liis  trustee  only,  in   [*281] 

the  following  terms  :  — 

Effect  of  disclaimer.  —  "  The  disclaimer  shall  operate  to  de- 
termine, as  from  the  date  of  disclaimer,  the  rights,  interests 
and  liabilities  of  the  bankrupt  and  his  property  in  or  in  re- 
spect of  the  property  disclaimed,  and  shall  also  discharge  the 
trustee  from  all  personal  liability  in  respect  of  the  property 
disclaimed  as  from  the  date  when  the  property  vested  in  him, 
but  shall  not,  except  for  the  purpose  of  releasing  the  bankrupt 
and  his  property  and  the  trustee  from  liability,  affect  the 
rights  or  liabilities  of  any  other  person." 

By  disclaimer,  therefore,  the  lease  is  lost  to  the  bankrupt 
and  his  estate  for  ever,  and  the  rights  of  the  landlord  upon 
the  lease  against  the  bankrupt  and  his  estate  are  also  lost, 
though,  as  we  shall  see  presently,  the  landlord  has  certain 
rights  of  proof  and  distress  reserved  to  him. 

Personal  liability  of  trustee.  —  The  lease,  with  the  other 
property  of  the  bankruptcy,  vests  in  the  trustee  at  the  date 
of  his  appointment,  so  that  disclaimer  will  save  him  wholly 
from  all  personal  liability  whatever.  Should  he  not  disclaim, 
his  personal  liability  is  undoubted  (t'). 

Rights  of  mortgagee,  assignee,  &c.,  "wrhere  assignee  bankrupt.  — 
The  "  other  persons  "  whose  rights  and  liabilities  are  pre- 
served by  this  sub-section  are  assignees,  mortgagees  (?/),  sul> 
lessees  (a;),  lessees,  where  it  is  the  assignee  who  is  bank- 
rupt (7/),  sureties  for  rent  (2),  and  all  persons  whatever 
whose  rights  or  liabilities  may  be  affected  by  the  disclaimer. 
Especially  should  it  be  borne  in  mind  that  if  it  be  an  assignee 
who  is  bankrupt,  the  lessee  is,  and  has  always  been,  liable 
on  his  covenants  to  the  lessor,  notwitlistanding  assign- 
ment (a). 


(0  See  Titterton  v.  Cooper,  L.  R.,  Co.  v.  Hill,  L.  R.,  App.  Cas.  448,  and 

Q.  B.  1).,  and  ante,  p.  27G.                      .  ante,  278. 

(h)  See  Be  Wilson,  L.  R.,  1.3  Eq.  (s)  See  Harding  v.  Preece,  L.  R., 

186.  9  Q.  B.  D.  281 ;  51  L.  J.,  Q.  B.  515. 

(x)   See  Smalley  r.  Ilardinge,  L.  R.,  (a)  Barnard  v.  Godschall,  Cro.  Jac. 

7  Q.  B.  D.  524  ;  50  L.  J.,  Q.  B.  368.  309,   and  ante,  260.      By   the    Bank- 

(^)  See  East  and  West  Iiidin  Dock  ruptcy  Act,  however,  the  lessee  loses 

451 


*282   ASSIGNMENT,    BANKRUPTCY,   DEATH,    ETC.     [Ch.  VII.  S.  11. 

Vesting  order. — Sub-s.  6.  —  It  is  enacted  by  sub-sect.  6  that 
the  court  may,  on  application  by  any  person  either  chiiming- 
any  interest  in  any  disclaimed  property  or  [being]  under 
any  liability  not  discharged  by  the  act  in  respect  of  any  dis- 
claimed property,  make  an  order  for  the  vesting  the  property 
in  any  person  (J)  entitled  thereto :  but  this  enactment  is 
subject  to  the  following  restrictive  proviso :  — 

Restriction  upon  vesting  order.  —  "  Provided  always,  that 
where  the  property  disclaimed  is  of  a  leasehold  nature,  the 
court  shall  not  make  a  vesting  order  in  favour  of  any  person 
claiming  under  the  bankrupt,  w^hether  as  under-lessee  or  as 
mortgagee  by  demise,  except  upon  the  terms  of  making  such 
pej'son  subject  to  the  same  liabilities  and  obligations  as  the 
bankrupt  was  subject  to  under  the  lease  in  respect 
[*282]  of  the  property  at  the  date  when  *  the  bankruptcy 
petition  was  filed,  and  any  mortgagee  or  under-lessee 
declining  to  accept  a  vesting  order  upon  such  terms  shall  be 
excluded  from  all  interest  in  and  security  upon  the  pi'operty, 
and  if  there  shall  be  no  person  claiming  under  the  bankrupt 
who  is  willing  to  accept  an  order  upon  such  terms,  the  court 
shall  have  power  to  vest  the  bankrupt's  estate  and  interest 
in  the  property  in  any  person  liable  either  personally  or  in  a 
representative  character,  and  either  alone  or  jointly  with  the 
bankrupt  to  perform  the  lessee's  covenants  in  such  lease, 
freed  and  discharged  from  all  estates,  incumbrances  and  in- 
terests created  therein  by  the  bankrupt." 

A  mortgagee  by  demise,  therefore,  by  taking  a  vesting 
order  will  incur  the  very  liability  —  that  of  the  covenants 
in  the  lease  —  which  the  substitution  of  a  mortgage  by 
demise  for  a  mortgage  by  assignment  was  intended  to  free 
him  from. 

Proof.  —  Sub-8.  7.  —  Section  55  closes  with  a  provision  that 
any  person  injured  by  the  disclaimer  may  prove  his  injury 
as  a  debt. 


the   benefit   of   the   covenant   of    in-  (l>)  Quaere,  ;)fr  Cave,  J.,  in  Parker, 

demnity  wliich    the    as.signee    would  In  re,  Turquand,  Ex  parte,  1  Morrell, 

give  liim,  and  tlierefore  would  seeui  27r),  whether  these  words  apply  to  the 

to  have  a  ri{;ht  of  proof  against  the  landlord, 
bankrupt's  estate. 

452 


Cii.VII.  S.  11.]  BANKEUrTCY   OF   LESSEE.  *283 

(e)  Distress  for  Rent} 

The  early  bankruptcy  acts  left  the  landlord's  common  law- 
remedy  by  distress  whole  and  intact,  and  goods  in  the  cus- 
tody of  a  messenger  in  bankruptcy  were  early  held  (c)  not 
to  be  in  the  custody  of  the  law  so  as  to  be  exempt  from  dis- 
tress under  that  head  of  exemptions  (cl).  A  mere  limitation 
of  the  distress  to  one  year's  rent,  first  imposed  in  1820  by  6 
Geo.  4,  c.  16,  s.  74,  and  repeated  in  1849  by  12  &  13  Vict, 
c.  106,  s.  129,  has  been  continued  by  the  Acts  of  1869  and 
1883  in  terms  which  first  affirm  and  afterwards  limit  the 
common  law. 

The  42nd  section  of  the  Act  of  1883,  repeating  exactly 
sect.  34  of  the  Act  of  1869,  is  as  follows :  — 

Distress  for  one  year's  rent.  —  "  The  landlord  or  other  per- 
son to  whom  any  rent  is  due  from  the  bankrupt  may  at  any 
time,  either  before  or  after  the  commencement  of  the  bank- 
ruptcy, distrain  upon  the  goods  or  effects  of  the  bank- 
rupt for  the  rent  due  to  him  from  the  bankrupt,  with  this 
limitation,  that  if  such  distress  for  rent  be  levied  after  the 
commencement  of  the  bankruptcy,  it  shall  be  available  only 
for  one  year's  rent  accrued  due  prior  to  the  date  of  the  order 
of  adjudication,  but  the  landlord  or  other  person  to  whom  the 
rent  may  be  due  from  the  bankrupt  may  prove  under  the 
bankruptcy  for  the  surplus  due  for  which  the  distress  may 
not  have  been  available." 

A   "  landlord  or  other  person."  —  The   WOrds    "  landlord    or 
other  person "  apply  to  a  person  who  is  made  landlord  by 
an  attornment  clause  in  a  mortgage  deed  (e),  unless 
*  the  rent  be  a  sham  rent  agreed  on  for  the  purpose   [*283] 
of  evading  the  law  of  bankruptcy  (/),  but  not  to  a 


(c)  Plummer,  ^,r  parte,  1  Atk.  103,  Stockton    Iron    Furnace    Co.,   In    re, 
;)er  Lord  Harchvicke.  L.    R.,  10    Ch.   D.  33.5;    Voiscy,  Ex 

(d)  See  post,  Ch.  XI.  parte.  Knight,  In  re,  L.  R.,  21  Ch.  D. 

(e)  Jackson,  Ex  parte,  Bowes,  In  re,  442  ;  52  L?  J.,  Ch.  121 ;  47  L.  T.  362; 
L.  R.,  14  Ch.  D.  725.     See  also  Wil-  31  W.  R.  19. 

liams,  Ex  parte,  L.  R.,  7  Ch.  D.  138;  (/)   ^eeYolsey,  Ex  parte, uhi  supra. 

^  See  ante,  (d),  note  upon  "The  law  as  to  disclaimer  in  the  United  States." 

453 


*283    ASSIGNMENT,    BANKRUPTCY,    DEATH,    ETC.    [Ch.  VII.  S.  11. 

gas  company  in  respect  of  gas  rent  (^),  unless  it  have  special 
statutory  powers,  e.g.  to  recover  the  gas  rent  "by  the  same 
process  as  landlords  are  by  law  empowered  to  recover  rent 
in  arrear  "  (Zf), 

Whether  distress  barred.  —  There  appears  to  be  some  au- 
thority for  saying  that  a  landlord,  if  he  choose  to  prove  for 
the  year's  rent  for  which  he  might  have  distrained,  loses  the 
right  of  distress  for  such  rent  («)  ;  and  it  seems,  at  any  rate, 
that  he  cannot  prove  and  distrain  for  the  same  amount  of 
rent. 

Right  of  distress  paramount.  —  Distress  is  not  such  a  "  legal 
process"  as  can  be  restrained  by  the  court  under  sect.  10, 
sub-sect.  2,  of  the  Bankruptcy  Act,  1883  (^),  and  it  can  be 
fully  proceeded  with,  notwithstanding  that  a  receiver  is  in 
possession  of  the  bankrupt's  property  (J). 

No  right  to  follow  goods.  —  If  the  goods  be  sold  by  the 
trustees  and  removed  from  the  premises  before  the  landlord 
has  distrained  upon  them,  he  has  no  right  to  follow  them  for 
the  purpose  of  distress,  but  loses  his  preferential  right 
altogether  (^w). 

Benefit  of  distress  how  lost.  —  If  the  goods  distrained  be 
left  unsold,  and  found  in  the  order  and  disposition  of  the 
bankrupt  at  the  commencement  of  the  bankruptcy,  they  will 
pass  to  the  trustee  by  the  order  and  disposition  clause  of  the 
Bankruptcy  Act  (w). 

Third  party  not  protected.  —  The  limitation,  that  only  one 
year's  rent  may  be  distraiiied  for,  protects  the  goods  of  the 
bankrupt  only,  and  not  the  goods  of  a  third  jjarty  which  may 

(//)   Hill,  Ex  parte,  Roberts,  In  re,  was  said  by  Lord  Batliurst  that  that 

L.  K.,  6  Ch.  D.  63;  40  L.  J.,  Bank.  was  the  ground  of  decision.    On  prin. 

IIG;  37  L.  T.,  40 ;  25  W.  R.  784.  ciple,  it  is  submitted  that  this  ques- 

(/i)  Birmingham  Gaslight  Co.,  Ex  tion  ought  to  be  determined  in  favour 

parte,   L.   R.,   11   Eq.  015;    40  L.  J.  of  the  landlord. 

Bank.  52.  {k)   ii'.r /jaWc  Birmingham  Gasliglit 

(0   Grove,  Ex  parte,  1  Atk.  \Ob,per  Co.,  L.  R.,  II  Eq.  015  ;  40  L.  J.  Bank. 

Lord  Hardwicke,  in  1739.     See  also  52. 

Robson,  p.  303,  where  it  is  said  that  (/)  Ex  jiarte  Till,  In  re  Mayhcw, 

the  landlord  "  must  make!  his  election  L.  R.,  10  Va\.  97. 

to  waive  either  his  proof  or  distress."  (m)   Bradyll  v.  Bale,  1  Bro.  C.  C. 

But  in  Ex  parte  Grove,  tlie  rights  of  427. 

a  vendee  came  in  question,  and  in  Ex  (n)   Ex     parte     Shuttloworth,     lie 

parte   Devine,  Cooke,  B.  L.  201,   it  Diane,  1   I).  &  C.  223. 

454 


Ch.VII.  S.  11.]  BANKRUPTCY   OF    LESSEE.  *284 

be  on  the  premises  of  the  bankrupt.  This  follows  from  the 
very  words  of  the  section,  which  limit  only  "such  distress," 
i.e.  distress  on  the  goods  of  the  bankrupt,  and  fi-om  the  case 
in  which  it  was  held  that  property  whicli  the  bankrupt  ten- 
ant had  mortgaged  was  liable  to  distress  in  full  (o). 

Distress  for  rent  due  after  adjudication.  —  The  landlord's 
right  to  distrain  for  rent  accruing  due  after  the  order  of 
adjudication  is  quite  unaffected ;  for  such  rent  (though  pay- 
able in  advance),  if  the  trustee  do  not  disclaim  the  lease,  or 
if  the  trustee  continue  in  possession,  the  landlord  may 
distrain  in  full  (^),  otherwise,  as  was  observed  by 
Bacon,  C.  J.,  a  trustee  in  bankruptcy  *  might  make  [*284] 
use  of  a  man's  property  without  paying  any  rent  for 
it,  and  snap  his  fingers  at  him. 

Payments  to  avoid  distress  valid.  —  Payment  by  a  tenant, 
after  an  act  of  bankruptcy,  of  a  year's  rent  to  avoid  a  distress 
is  valid  (r),  and  a  person  who  paid  out  a  distress  has  been 
held  entitled  to  be  recouped  in  full  out  of  the  bankrupt's 
estate  before  the  creditors  received  any  dividend  (s). 

(f)  Proof  for  Rent,   ^c.^ 

Proof  for  rent  for  broken  period.  —  B}^  Rule  19  of  the  second 
schedule  of  the  Bankruptcy  Act,  1883,  re-enacting  sect.  35 
of  the  Act  of  1869,  "  when  any  rent  falls  due  at  stated 
periods,  and  the  receiving  order  is  made  at  any  time  other 
than  one  of  those  periods,  the  person  entitled  to  the  rent 
may  prove  for  a  proportionate  part  thereof  up  to  the  date  of 
the  order  as  if  the  rent  grew  due  from  day  to  da3^" 

Proof  for  rent  in  addition  to  distress.  —  We  have  already 
seen  that  a  landlord  may  distrain  for  a  year's  rent  only,  but 
may  prove  under  the  bankruptcy  for  the  surplus  due  for 
which  the  distress  may  not  have  been  available  (f).>  and  dis- 

(o)  Brocklehurst  v.  Lawe,  7  E.  &  (r)  Stevenson  v.  Wood,  5  Esp.  200. 

B.  176  ;  26  L.  J.,  Q.  B.  107.  (s)  Ex  parte  Kennard,  21  L.  T.  684. 

(7)   Hale,  J^xpaz-^e,  A'c  Binns,  L.  R.,  The  payment  was  at  the  request  of 

1  Ch.  D.  285;  45  L.  J.,  Bank.  21 ;  33  certain  creditors. 

L.  T.  706  ;  24  W.  R.  300.  (0  Ante,  282. 

^  See  ante,  (c?),  note  upon  "  The  law  as  to  disclaimer  in  the  United  States." 

455 


*285     ASSIGNMENT,   BANKRUPTCY,    DEATH,    ETC.    [Ch.  VII.  S.  12. 

cussed  the  question  how  far  the  right  of  distress  is  barred  by 
proof  (w). 

Proof  for  injury  by  disclaimer.  —  It  is  provided  by  Sub-Sect. 
7  of  sect.  55  of  the  Bankruptcy  Act,  1883,  that :  — 

"All}-  person  injured  by  the  operation  of  a  disclaimer 
under  tliis  section  shall  be  deemed  to  be  a  creditor  of  the 
bankrupt  to  the  extent  of  the  injury,  and  may  accordingly 
prove  the  same  as  a  debt  against  the  bankruptcy." 

This  sub-section  re-enacts  part  of  sect.  23  of  the  Act  of 
1869.  A  lessor  suffering  by  the  disclaimer  of  a  lease  of  part- 
nership premises,  may,  as  was  held  under  that  section,  prove 
against  the  separate  estate  of  each  partner  for  the  injury  (a;), 
and,  as  was  also  held,  if  disclaimed  premises  let  for  a  term, 
can  only  be  re-let  at  a  reduced  rent,  the  landlord  is  entitled 
to  prove  for  the  difference  between  the  present  worth  of  the 
agreed  rent  for  the  term,  or  for  the  period  at  which  it  may 
be  by  option  determinable  Q/'),  and  the  present  worth  of  the 
letting  value  for  the  same  period  (s). 


[*285]  *  Sect.  1 2.  —  Marriage.'^ 

(a)  Of  Female  Lessor  (a). 

The  law  of  this  subject  has  been  revolutionised  by  the 
Married  Women's  Property  Act,  the  effect  of  which  has 
been  already  given,  and  it  is  only  necessary  here  shortly  to 
state  the  effect  of  the  law  before  that  act. 

Interest  of  husband  in  wife's  freeholds.  —  At  common  law  a 
husband  took  a  freehold  interest  during  the  coverture  in  such 
of  his  wife's  freeholds  of  inheritance  as  were  not  put  into 
settlement  before  the  marriage,  and  he  might  dispose  of  such 
freehold  interest  by  deed  without  her  concurrence  (6). 

(h)  Aritr,  28-'].  (r)  Ex  parte  Llynvi  Coal  and  Iron 

(r)  A'.r  parte  Corbctt,  Re  Shand,  L.  Co.,  7iV  Hide,  L.  R.,  7  Cli.  28. 

R.,  14  Cli.  I).  122.  (a)  And  see  ante,  p.  68. 

(y)  Ex  parte  IMake,  Ee  McEwan,  (h)  Robertson  v.  Norris,  11  Q.  B. 

L.  R.,  11  Ch.  D.  572.  910. 

^  See  ante,  chaps.  1  &  2,  notes. 

456 


Ch.  VII.  S.  12.]    MARRIAGE    (OF   FEMALE  LESSOR).  *286 

Tenancy  by  the  curtesy.  —  Tenancy  by  the  curtesy,  how- 
ever, appears  to  have  survived  the  Married  Women's  Prop- 
erty Act,  and  if  the  husband  have  issue  by  his  wife  born 
alive,  who  might  by  possibility  have  inherited,  he  will  still 
become  tenant  by  the  curtesy  for  his  life  of  her  freeholds  of 
inheritance  (including  estates  tail)  (c).  But  such  title  is 
only  initiate  during  her  life,  and  will  not  merge  any  term 
of  years  to  which  he  may  be  entitled  in  his  own  right  (t/). 
Unless  he  becomes  tenant  by  the  curtesy  he  cannot  distrain 
or  sue  for  rent  of  the  Avife's  freeholds  which  accrues  after 
her  death  under  a  demise  made  by  his  wife  and  himself,  or 
by  him  on  her  behalf  (e).  If,  however,  the  lease  was  made 
by  him  in  his  own  name  only,  the  tenant  would  be  thereby 
estopped  from  denying  his  title  to  the  subsequent  rent  during 
the  continuance  of  the  tenancy  (e). 

Arrears  of  rent,  &c.,  before  marriage.  —  Arrears  of  rent  and 
other  debts  due  to  a  female  lessor  before  her  marriage,  and 
breaches  of  covenant,  trespasses,  &c.,  before  then  committed, 
were  at  common  law  choses  in  action^  which  could  only  be 
sued  for  by  the  husband  and  wife  jointly,  and  not  by  the 
husband  alone  (/)  ;  nor  by  the  wife  alone  (^). 

Leases  at  will.  —  At  common  law  if  a  feme  sole  made  a 
lease  at  will,  or  was  lessee  at  will,  and  afterwards  married, 
the  marriage  was  no  determination  of  her  will,  so  as  to  make 
the  lease  void ;  nor  could  she  herself,  without  the  consent 
of  her  husband,  determine  the  lease  in  either  case  (A) ;  but 
the  Married  Women's  Property  Act  would  seem  to  give 
this  right.  Where  the  husband  and  wife  made  a  lease  for 
years  by  indenture  of  the  wife's  lands,  reserving  rent,  and, 
the  lessee  having  entered,  the  husband  before  any  day  of 
payment  died ;  upon  which  the  wife  took  a  second 
*  husband,  and  he  at  the  day  accepted  the  rent  and  [*286] 
died :  it  w^as  held,  that  the  wife  could  not  avoid  the 

(c)  Co.  Lit.  29  a— 30  b;  Burton,  v.  Scarrott,  and  Sharp  v.  Scarrott,  4 
Conip.  ss.  348-355.  II.  &  N.  723 ;  28  L.  J.,  Ex.  325. 

(d)  Jones  V.  Davies,  5  H.  &  N.  706 ;  (/)  Milner  v.  Milnes,  3  T.  R.  631 ; 
29  L.  J.,  Ex.  378;  31  Id.  116.  1  Chit.  PI.  33  (7th  ed.). 

(e)  Hill  V.  Saunders,  2  Ring.  112;  (g)  Caudell  v.  Sliaw,  4  T.  R.  361. 
s.  c.  (in  error),  4  B.  &  C.  529;  Howe  (/;)  Bac.  Abr.  tit.  Baron  and  Feme 

(E.). 

457 


*286    ASSIGNMENT,    BANKRUPTCY,    DEATH,    ETC.    [Ch.  VII.  S.  12. 

lease ;  for  that  by  her  second  marriage  she  had  transferred 
the  power  of  avoiding  it  to  her  husband,  and  his  acceptance 
of  the  rent  had  bound  her,  as  her  own  before  such  marriage 
woukl  have  done ;  for  he,  by  the  marriage,  succeeded  into 
the  power  and  place  of  his  wife,  and  what  she  might  have 
done,  either  as  to  affirming  or  avoiding  the  lease  before 
marriage,  the  husband  might  do  after  the  marriage  (i). 

(b)    Of  Female  Lessee. 

Effect  of  marriage  on  the  leasehold.  —  Marriage  was  a  gift 
in  law  to  the  husband  of  all  the  wife's  chattels  real  (not 
put  into  settlement),  —  as  a  term  for  years  in  right  of  his 
wife ;  of  which  he  alone  might  dispose,  or  forfeit,  or  they 
may  be  extended  for  his  debts  (k').  If  he  sublet  any  of 
them  in  his  own  name  only,  the  rent  belonged  to  his  execu- 
tors or  administrators,  and  not  to  the  wife  as  survivor  (Z). 
He  might  even  dispose  of  them  by  deed  to  take  effect  on 
his  death  to  the  exclusion  of  the  wife  (m).  If  lands  were 
demised  to  a  man  and  his  wife,  and  the  husband  alone  made 
an  underlease,  he  alone  might  sue  a  third  person  for  an 
injury  to  the  reversion  (w).  If  a  husband  agreed  to  grant 
an  underlease  of  the  wife's  term  of  years,  such  agreement 
was  a  good  disposition  in  equity  of  the  term,  and  would 
bind  the  wife  in  case  of  the  husband's  death  without  granting 
the  lease  (o).  But  a  husband  could  not  assign  his  wife's 
reversionary  interest  in  leaseholds,  if  that  interest  was  of 
such  a  nature  that  it  could  not  possibly  vest  in  the  wife  in 
possession  during  the  coverture  (^). 

(0  Bac.  Abr.  tit.  Leases  (C).  («)  Wallis  v.  Harrison,  5  M.  &  W. 

{k)  Bac.  Abr.  tit.  Baron  and  Feme  142 ;  7  Dowl.  395. 

(C.  2),  (I.).  {(,)  Stead  v.  Creagh,  9  Mod.  43; 

(/)  Com.  Dig.  tit.  Baron  and  Feme  Druce  v.  Dcnison,  0  Vos.  385;  Bac. 

(E.  2)  ;  Co.  Lit.  40  b,  351  a;  1   Roil.  Abr.  tit.  Baron  and  Feme  (C.  2). 

34.3,  1.  15;  Blaxton  v.  Heath,  I'oph.  (/))  Day  v.  Duberly,  6  H.  L,  Cas. 

145.  388. 

(m)    Ilcrbin   v.   Chard,    Pojjh.    90; 
Grute  V.  Locroft,  Cro.  Eiiz.  287. 

458 


Cu.  VII.  S.  13.]  DEATH.  *286 

Sect.  1?>.  — Death. 

(a)  Heirs^  or  Devisees. 

Bequest  of  leaseholds;  assent  of  executors.  —  By  the  Wills 
Act,  1  Vict.  c.  20,  a  man  may  devise  all  real  and  personal 
estate  which  he  is  entitled  to,  at  the  time  of  his  death,  and 
the  better  opinion  is  that  such  a  devise  is  not  a  breach  of 
the  covenant  not  to    assign  without   licence  (^q).     Where  a 

(y)  See  the  cases  considered,  post,  Ch.  XVII.,  Sect.  2,  p.  661. 

1  Rents ;  vrhen  belonging  to  heirs  and  devisees.  —  Rents  accruing 
subsequently  to  the  death  of  testator  or  intestate  belong  to  the  heirs,  Shouse 
V.  Krusor,  24  Mo.  App.  279;  Haslage  v.  Krugh,  25  Pa.  St.  07;  Stinson  v. 
Stinson,  38  Me.  593  ;  Crosby  v.  Loop,  13  111.  625 ;  Green  v.  Massie,  Id.  363 ; 
Foltz  V.  Prouse,  17  Id.  487  ;  Towle  v.  Swasey,  106  Mass.  100,  107 ;  Gibson  v. 
Farley,  16  Mass.  280;  Rank  r.  Hill's  Adm'r,  8  Bush.  (Ky.)  66;  O'Bannon  v. 
Roberts'  Heirs,  2  Dana  (Ky.)  55;  Atciiison's  Heirs  i'.  Lindse}^  6  B.  Mon. 
(Ky.)  86,  88;  Williamson's  Adni'x  v.  Richardson,  6  Mon.  (Ky.)  596,  603;  or 
devisees.  Combs'  l^evisees  v.  Branch,  4  Dana  (Ky.)  547  ;  Burnell's  Estate,  9 
Weekly  Notes  of  Cases  (Pa.)  334,  and  13  Phila.  387  ;  Ball  v.  First  Nat, 
Bank  of  Covington,  80  Ky.  501,  as  owners  of  the  realty,  the  realty  itself 
vesting  immediately  in  them  upon  the  death  of  the  decedent,  Douglass  v. 
Massie,  16  Ohio,  271  ;  Gill  v.  Pinney's  Adm'r,  12  Ohio  St.  38,  46  {per  Scott, 
C.  J.)  ;  Rubottom  v.  Morrow,  24  Ind.  202;  Lucy  v.  Lucy,  55  N.  H.  9;  Lane  u. 
Thompson,  43  Id.  320,  325  {per  Sargent,  J.),  subject  to  sale  for  payment  of 
debts.  Until  such  sale  the  rents  belong  to  them  notwithstanding  the  estate 
is  insolvent,  Kimball  v.  Sumner,  62  Me.  305;  Lobdell  v.  Hayes,  12  Gray 
(Mass.)  230 ;  Overturf  v.  Dugan,  29  Ohio  St.  230 ;  Ball  v.  First  Nat.  Bank  of 
Covington,  80  Ky.  501;  or  the  lands  subject  to  legacies,  Towle  v.  Swasey,  106 
Mass.  100.  After  such  sale  the  balance  of  proceeds  belongs  to  them.  Gris- 
wold  V.  Frink,  22  Ohio  St.  79. 

If,  as  is  frequently  the  case,  the  executor  collects  the  rents,  he  holds  them 
not  in  his  capacity  as  executor,  Newcomb  v.  Stebbins,  9  Met.  (Mass.) 
540 ;  Towle  v.  Swasey,  106  Mass.  100,  but  as  trustee  or  tenant  for  them, 
Landis  v.  Scott,  32  Pa.  St.  495;  Burns  v.  Cox,  10  Phila.  8;  but  not  to  be 
accounted  for  in  the  probate,  surrogates',  or  orphans'  courts,  Lucy  v.  Lucy,  55 
N.  H.  9;  Gregg  v.  Currier,  36  Id.  200;  Terry  v.  Bale,  1  Dem.  (N.  Y.  Sur.) 
452 ;  Burnell's  Estate,  9  W.  N.  C.  (Pa.)  334,  and  13  Phila.  387 ;  M'Coy  v. 
Scott,  2  Rawle  (Pa.)  222;  McClead  v.  Davis,  83  Ind.  263;  Trimble  v.  Pollock, 
77  Id.  576 ;  Hendrix  v.  Hendrix,  65  Id.  329,  unless  authorized  thereto  by 
special  statute,  and  the  sureties  upon  his  official  bond  are  not  liable  therefor. 

In  Massachusetts,  by  special  statute,  he  is  allowed  upon  mutual  consent 
to  include  the  rents  in  his  probate  accounts.  Pub.  Sts.  chap.  144,  sec.  5; 
Stearns  v.  Stearns,  1  Pick.  (Mass.)  157  ;  Palmer  ;■.  Palmer,  13  Gray  (Mass.)  326. 

Lands  which  are,  in  equit^^  personalty,  belong  to  the  executor.  Buck- 
waiter  V.  Klein,  2  Am.  Law  Rcc.  347. 

Rent  of  leaseholds  (being  derived  out  of  personalty)  belongs  to  the  execu- 
tor. Williamson's  Adm'x  v.  Richardson,  6  Mon.  (Ky.)  596,  603  {per  Bibb, 
C.  J.),  and  see  post,  (b),  notes. 

459 


*287    ASSIGNMENT,   BANKRUPTCY,    DEATH,    ETC.    [Ch.  VII.  S.  13. 

term  is  specifically  bequeathed,  it  will,  notwithstanding,  in 
the  first  instance  vest  in  the  executor  by  virtue  of 
[*287]  his  oflice ;  and  the  legatee  cannot  enter  until  he  *  has 
the  assent  of  the  executor  to  the  bequest  (r).  Indeed, 
even  where  a  term  is  bequeathed  to  an  executor  for  his  own 
use,  it  does  not  vest  in  him  as  legatee  until  he  as  executor 
assents  to  it  (&•).  An  executor  may  before  obtaining  probate 
assent  to  a  bequest  (f) ;  but  not  an  administrator  before 
obtaining  letters  of  administration  (ii).  The  assent  of  any 
one  of  several  executors  is  sufficient  (x).  The  assent  of 
an  executor  to  a  bequest  is  not  matter  of  law,  but  a  question 
of  fact  for  the  jury  (y).  An  assent  once  given  cannot  after- 
wards be  retracted  (z).  Executors  should  never  assent  to 
a  bequest  until  they  have  very  clearly  ascertained  that 
there  is  sufficient  property  to  pay  all  the  testator's  debts  and 
liabilities.  An  executor  who  has  assented  unconditionally 
to  a  specific  bequest  of  the  testator's  leaseholds  is  not 
entitled,  in  a  Court  of  Equity,  to  require  an  indemnity 
out  of  the  testator's  general  estate  in  respect  of  his  cove- 
nants contained  in  the  leases  (a). 

Actions  for  breaches  before  or  after  lessor's  death.  —  Where 
the  covenant  of  a  lessee,  whether  it  runs  with  the  land 
or  not,  has  been  broken  in  the  lessor's  lifetime,  and  whilst 
the  lessor  continued  to  be  the  reversioner,  his  executors 
or  administrators  are  the  only  persons  entitled  to  sue 
u^wn  it :  and  so,  also,  with  respect  to  covenants  which  do 
not  run  with  the  land  or  with  the  reversion.  The  admin- 
istratrix of  the  surviving  trustee  of  freehold  or  leasehold 
property  may  sue  for  arrears  of  rent  which  became  due  in 

(r)  Doe  d.  Maberley  v.  Maberley,  (.r)  2  Wms.  Exors.  948,  1378  (7tli 

C  C.  &  V.  120;  2  Wms.  Exors.  1372       ed.). 
(7tli  ed.).  Cv)  Mason  v.  Farnell,  12  M.  &  W. 


(s)  Young  V.  Holmes,  1  Stra.  70 
Doe  (1.  Hayes  r.  Sturi^es,  7  Taunt 
217;  Sliep.  Toucli.  451;  2  Wms 
Exors.  1.380  (7th  ed.). 

(0  Fenton  v.  Clegg,  0  Excli.  080 
Jolinson   V.   Warwick,   17  C.  B.  516; 


674  ;  1  D.  &  L.  576. 

{z)  Doe  d.  Ld.  Sa3'e  and  Sele  v. 
Guy,  3  East,  120;  Foley  v.  Barnell,  4 
Bro.  P.  C.  34. 

((()  Sliadbolt  V.  Woodfall,  2  Coll. 
.30;   Hickling  ,..  Bowyer,  3  Mac.  &  G. 


25  L.  .T.,  C.  P.  102.  035,  04(i ;  2  Wnjs.  Exors.  1348,  1378 

(u)  Morgan  v.   Tliomas,   8   Exch.       (7th  ed.). 
302. 

460 


Ch.  VII.  S.  13.]  DEATH.  *288 

his  lifetime  (^).  Where  a  covenant  of  the  lessee,  which 
runs  with  the  land,  has  heen  broken  after  the  death  of  the 
lessor,  the  riglit  of  action  is  vested  in  the  person  then 
legally  entitled  to  the  reversion  (<?). 

Who  entitled  to  rent,  &c.  before  birth  of  posthumous  child.  — 
A  qualified  heir  is  entitled  to  the  rents  and  profits  of  realty 
which  accrue  between  the  death  of  the  ancestor  and  the 
birth  of  the  ancestor's  posthumous  and  only  child,  whether 
such  rents  be  actually  received  before  such  birth  or  not  (c?). 

Actions  against  legatees  and  heirs.  —  The  legatee  of  a  term 
is  an  assignee  tliereof  (after  the  executor  has  assented  to  the 
bequest),  and  as  such  is  liable  for  subsequent  breaches  of 
covenants  which  run  with  the  land  (e)  ;  but  a  legatee  of 
an  equity  of  redemption  in  a  term  cannot  be  charged  as  an 
assignee  (/).  If  there  be  a  breach  of  the  lessor's 
covenants  in  his  lifetime,  his  heir  is  *  liable  if  named,  [*288] 
if  the  covenant  be  real,  in  respect  of  his  assets  by 
descent;  and  he  may  be  sued  as  an  assignee  of  the  rever- 
sion (^). 

(b)  Executors  and  Administrators?- 

What  goes  to  executors  and  administrators.  —  ExecutorS. 
and  administrators  are  entitled,  by  virtue  of  their  office,  to 

(b)  Dollen  v.  Batt,  4  C.  B.,  N.  S.  (e)  Holford  v.  Hatch,  1  Doug.  184. 
760;  27  L.  J.,  C.  P.  281.  (/)  Mayor  of  Carlisle  v.  Blamire, 

(c)  Com.  Dig.  tit.  Covenant  (B.  3).       8  East,  487. 

(c?)  Richards  v.  Richards,  1  Johns.  {g')  Derisley  v.  Custance,  4  T.  R. 

754 ;  29  L.  J.,  Ch.  836.  75. 

1  Relations  to  realty.  —  («)  Generalh/.  —  Executors  and  administrators 
at  common  law  have  no  control  over  realty  (except  to  sell  it  under  license  if 
necessary  to  pay  debts  and  legacies)  unless  given  by  will.  See  ante,  (a),  note. 
Rodman  v.  Rodman,  54  Ind.  444 ;  Hankins  v.  Kimball,  57  Id.  42 ;  Kidwell  v. 
Kidwell,  84  Id.  224;  Lane  v.  Thompson,  43  N.  H.  320,  325  {per  Sargent,  J.). 

The  power  to  lease  property  may  be  conferred  by  will.  Martin's  Appeal, 
23  Pa.  St.  433;  Hauck  v.  Stauffer,_31  Id.  235;   Carlile's  Appeal,  38  Id.  250. 

The  power  to  sell  does  not  necessarily  imply  the  right  to  lease  or  to 
occupy.     Rubottom  v.  Morrow,  24  Ind.  202;  Gregg  v.  Currier,  36  N.  H.  200. 

A  fortiori,  the  power  to  sell  upon  the  happening  of  a  future  expected  event 
(as  the  marriage  or  death  of  a  widow),  does  not  give  the  present  right  of  pos- 
session and  control.  James  v.  Beesly,  4  Redf.  (N.  Y.)  236.  Realty,  which  is 
in  equity  personalty,  is  subject  to  the  control  of  the  executor  to  be  distributed 
like  personalty.     It  was  so  held  wliore    lessee,  under   lease   with   purchase 

461 


*288    ASSIGNMENT,    BANKRUPTCY,    DEATH,    ETC.     [Ch.  VII.  S.  13. 

all  the  chattels  real  ^  and  personal  ^  of  the  deceased,  notwith- 
standing a  specific  bequest  of  any  of  them  to  another  person. 
A  legatee  of  leaseholds  has  no  complete  title  until  one  or 
more  of  the  executors  has  assented  to  the  bequest  (A).  If  a 
lease  for  years  of  land  be  granted  to  a  man  and  his  heirs,  or 
to  him  and  the  heirs  of  his  body,  or  to  him  and  his  succes- 
sors, and  he  die,  his  executor  or  administrator,  and  not  his 
heir,  takes  the  term  ({).  If  a  rent  be  granted  or  reserved 
out  of  land  to  a  person  in  fee-simple,  fee-tail,  for  life  or  years, 
the  arrears  due  at  his  death  go  to  his  executor  or  administra- 


(A)  Ante,  Ch.  I.  Sect.  27,  and  see,       Touch.  469;  1  Wms.  Exors.  673  (7th 
also,  286.  ed.). 

0)  Lit.  s.  740;  10  Co.  R.  18;  Shep. 


option,  tendered  his  money  and  claimed  right  to  purchase  after  the  death  of 
lessor.  The  money  was  held  to  be  assets  for  the  lessor's  executor.  Buck- 
waiter  V.  Klein,  2  Am.  Law  Record,  347. 

(6)  In  California  the  executor  or  administrator  has  full  control  of  both 
realty  and  personalty  during  the  settlement  of  the  estate.  Code  Civil  Pro- 
cedure, sec.  1452.  He  can  maintain  ejectment  to  gain  possession  of  the 
lands,  Curtis  v.  Herrick,  14  Cal.  117 ;  Touchard  v.  Keyes,  21  Id.  202,  208, 
209,  and  even  against  the  heirs  or  devisees,  Page  i\  Tucker,  54  Id.  121 ;  and 
the  heirs  cannot  recover  possession,  Meeks  v.  Hahn,  20  Id.  620.  He  may 
lease  the  realty  during  the  period  of  administration,  Doolan  r.  McCauley,  66 
Cal.  476 ;  is  entitled  to  receive  the  rents  and  profits  as  against  the  heirs, 
Smith  V.  Walker,  38  Id.  385 ;  and  must  account  for  them  in  the  probate  court, 
Walls  V.  Walker,  37  Id.  424.  The  rents  are  not  thereby  changed  into  person- 
alty, but  retain  their  character  except  so  far  as  needed  to  pay  debts.  Matter 
6f  Estate  of  Woodworth,  31  Id.  595,  604,  605. 

1  Chattels  real  belong  to  executor.  — Terms  for  years  and  other  lease- 
hold property  less  than  fri'ohohl  are  chattels  real,  and  belong  to  the  executor. 
Wiley's  Appeal,  7  W.  &  S.  (Pa.)  244;  Green  v.  Green,  2  Redf.  (N.  Y.)  408; 
Mayor  v.  Mabic,  13  N.  Y.  151,  159  (per  Denio,  J.)  ;  Gay,  Petitioner,  5  Mass. 
419;  Pugsley  i-.  Aikin,  11  N.  Y.  494;  Murdock  v.  Ratcliff,  7  Ohio,  119; 
Reynold's  Heirs  v.  Commissioners,  &c.,  5  Id.  204;  Lewis's  Heirs  v.  Ringo,  3 
A.  K.  Marsh.  (Ky.)  247;  Faler  v.  McRae,  56  Miss.  227;  Webster  v.  Parker, 
42  Miss.  465;  Dilimgliam  i'.  Jenkins,  7  S.  &  M.  (Miss.)  479,  487,  Horn  n. 
Bowen,  2  Clev.  Law  Rep.  133,  and  Schee  v.  Wiseman,  79  Ind.  389  (mining 
leases)  ;  Emeret's  Estate,  2  Pars.  (Pa.  Eq.  Cas.)  195  (tenancy  from  year  to 
year)  ;  Keating  >•.  Condon,  08  Pa.  St.  75;  Copi)els'  Estate,  4  Phila.  378. 

In  Cunningham  v.  Baxlcy,  96  Ind.  367,  it  was  held  that  a  parol  sub-lease, 
given  by  life  tenant  during  own  life,  was  a  chattel,  and  passed  to  the  executor. 

-  Accrued  rents.  —  Rents  accrued  prior  to  the  death  of  testator  or  intes- 
tate belong  to  tlie  executor.  Ball  v.  First  Kat.  Bank  of  Covington,  80  Ky. 
501;  Combs'  Devisees  v.  Branch,  4  Dana  (Ky.)  547;  O'Bannon  v.  Roberts' 
Heirs,  2  Id.  55. 

462 


Ch.  VII.  S.  13.]  DEATH.  *288 

tor  (A) ;  and  a  rent-charge  pur  autre  vie  goes  to  the  execu- 
tors or  administrators  of  the  grantee,  though  they  are  not 
mentioned  in  the  grant  (Q. 

Effect  of  probate.  —  The  right  of  an  executor  to  the  personal 
estate  and  effects  of  his  testator  (including  chattels  real  and 
choses  in  action)  is  derived  from  the  will,  of  which  the  pro- 
bate is  merely  evidence  (m).  He  is  legally  possessed  from 
the  time  of  the  testator's  death,^  and  before  obtaining  pro- 
bate (w).  Where  leaseholds  are  mortgaged,  probate  duty  is 
payable  in  respect  thereof  only  on  the  value  beyond  the 
mortgage  (o). 

Letters  of  administration.  —  The  validity  of  letters  of  admin- 
istration cannot  be  disputed  on  the  ground  that  there  is  a 
will,  without  first  getting  them  recalled  by  the  Court  of  Pro- 
bate (jo).  The  right  and  power  of  an  administrator  is  derived 
wholly  from  the  letters  of  administration  (g).  He  cannot 
bind  the  testator's  estate  by  asserting  to  any  application  or 
disposal  thereof,  before  obtaining  letters  of  administration; 
which  do  not  relate  back  (r).  An  executor  de  son  tort,  to 
whom  administration  is  subsequently  granted,  may  repudiate 
an  agreement  made  by  him,  to  surrender  a  term  of  years 
vested  in  the  intestate  (s). 

Executor  cannot  renounce.  —  If  a  testator  die  possessed  of 
a  term  of  years,  it  will  vest  in  his   executor,^  who  cannot 

(k)  1  Wms.  Exors.  820  (7th  ed.)  ;  (n)  Smith  v.  Milles,  1  T.  R.  480; 

DoUen  v.  Batt,  4  C.  B.,  N.  S.  760;  27  Roe  d.  Bendall  v.  Summerset,  2  W. 

L.  J.,  C.  P.  281.  Blac.  692  ;  5  Burr.  2608. 

(/)  1  Vict.  c.  26,  s.  G;  Bearpark  v.  (o)  81  &  32  Vict.  c.  124,  ss.  7,  8. 

Hutchinson,    7   Bing.  178;  Reynolds  (p)  Prosser  w.  Wagner,  1  C.  B.,  N. 

V.   Wright,  25  Beav.   100;  27   L.  J.,  S.  289;  26  L.  J.,  C.  P.  81. 

Ch.  .392 :  2  De  Gex,  F.  &  J.  590.  ((7)    Shep.    Touch.    474;     1    Wms. 

(m)  Hensloe's  case,  9  Co.  R.  38  a;  Exors.  404   (7th  ed.). 

1  Wms.  Exors.  293  (7th  ed.)  ;  Pem-  (r)  Morgan  7;.  Thomas,  8  Exch.  302. 

berton  v.  Chapman,  7  E.  &  B.  218;  26  (s)  Doe  d.  Hornby  v.  Glenn,  1  A.  & 

L.  J.,  Q.  B.  120.  E.  49. 

1  Administrator's  title  relates  back  to  the  decedent's  death  ;  and  wliere 
a  lessor  reserved  option  to  take  bricks  at  fair  market  value  in  payment  of 
rent,  but  did  not  exercise  the  option  till  death  of  lessee,  it  was  held  then  too 
late,  as  the  title  to  the  bricks  had  vested  in  the  administrator.  AVait's 
Appeal,  7  Pick.  (Mass.)  100. 

^  Executors  are  liable  de,  bonis  propriis,  if  they  occupy.  Smiley  v.  Van 
Winkle,  0  Cal.  605,  606  (per  Murray,  C.  J.). 

463 


*289   ASSIGNMENT,   BANKRUPTCY,    DEATH,    ETC.     [Ch.  VII.  S.  13. 

waive  it  although  it  be  worth  nothing ;  for  he  must  renounce 
the  executorship  in  toto,  or  not  at  all  (f).  If  he 
[*289]  assign  *  it,  or  assent  to  a  specific  bequest  of  it,  he 
may  thereby  be  guilty  of  a  devastavit  to  the  extent 
of  its  real  value.  Terms  of  years  belonging  to  a  testator  or 
intestate  vest  in  his  executor  or  administrator  without  any 
entry  (w).  In  the  case  of  a  tenancy  from  year  to  year  as 
long  as  both  parties  please,  if  the  tenant  die.  his  personal 
representative  has  the  same  interest  in  the  land  as  he  had  (a:). 
Any  one  of  several  executors,  without  the  concurrence  of 
the  others,  has  power  to  assign  the  whole  of  the  testator's 
term  and  interest  in  all  or  any  of  his  leasehold  property  (?/)  ; 
but  not  after  either  of  them  has  assented  to  a  bequest  of 
such  property  to  a  legatee  (2:). 

Actions  by  executors.  —  An  action  for  rent,  which  became 
due  in  the  lifetime  of  the  lessor,  may  be  brought  by  his  exec- 
utor or  administrator.  So  he  may  sue  the  lessee  for  breach 
of  a  coA^enant  not  to  fell,  stub  up,  lop  or  top  timber  trees, 
excepted  out  of  the  demise,  the  breach  having  been  com- 
mitted in  the  lifetime  of  the  lessor  (a).  So  the  executor  of 
a  tenant  for  life  may  sue  for  breach  of  a  covenant  to  repair, 
committed  by  the  lessee  in  the  lifetime  of  the  testator  (6). 
By  3  &  4  Will.  4,  c.  42,  s.  2,  executors  and  administrators 
may  bring  actions  for  injuries  to  the  real  estate  of  the  de- 
ceased committed  within  six  months  before  his  death. 

(0  Hellier  v.  Casbard,  1  Rid.  20G ;  1  Ecx  v.  Great  Glenn,  5  B.  &  Ad.  188  ; 

Lev.  127  ;  Rubery  v.  Stevens,  4  B.  &  Thompson  v.  Tlionipson,  9  Price,  464. 
Ad.  244.  (//)  Hawkins  v.  Williams,  10  W.  R. 

(u)  Wollaston  v.  Hakewill,  3  M.  &  602,  Q.  B. 
G.  297 ;  Atkins  r.  Humphrey,  2  C.  B.  (z)  Cole  Ejec.  529,  r)30. 

654  ;  3  D.  &  L.612;  but  see  Kearsley  (a)  Raymond  v.  Fitch,  2  C,  M.  & 

V.  Oxiey,  2  II.  &  C.  800.  R.  588.     See  1  Wms.  Exors.  806  (7th 

(x)  Doe  d.  Shore  v.  Porter,  3  T.  R.  ed.). 
13;    James    v.   Dean,    11    Ves.   301;  (6)  Rickets  w.  Weaver,  12  M.  &  W. 

Mackay  v.  Mackreth,  4    Doug.  213;  718;  Noble  v.  Cass,  2  Sim.  343. 

In  Enqlnnd  they  are  liable  only  up  to  the  Icttinrj  value  except  so  far  as 
they  have  assets. 

In  re  Bowes,  37  Ch.  D.  128,  132  {per  North,  J.). 

In  the  United  States  an  executor  is  liable  to  the  extent  of  the  assets  for  the 
full  value  of  tiie  term,  but  if  he  waive  the  term  and  decline  to  enter  and 
occupy  tlic  premises,  he  is  not  liable  de  bonis  ]>roj)riis.  Walworth,  Chan.,  in 
Martin  v.  Black,  9  Paige  (N.  Y.)  Oil,  614. 

404 


Ch.  VII.  S.  13.]  DEATH.  *290 

Distress.  —  As  to  distresses  by  executors  or  administrators, 
see  post  (c). 

Liability  of  personal  representatives. —  An  executor  or  ad- 
ministrator may  be  charged  as  such  for  arrears  of  rent  due 
from  the  deceased,  so  far  as  he  has  assets  (tZ),  but  by  the 
operation  of  32  &  33  Vict.  c.  46,  the  lessor  is  not  entitled  to 
any  priority  over  other  creditors  (e).  So  also  is  an  executor 
de  son  tort,  and  that  merely  on  proof  that  the  term  vested  in 
him  as  such  (/).  For  subsequent  rent  he  may  be  charged 
either  as  executor  (or  administrator)  during  the  term  (</), 
or  personally  as  an  assignee  of  the  term,  even  where  he  has 
not  entered  to  take  possession  of  the  demised  premises  (A). 
But  the  husband  of  an  executrix  or  administratrix,  who  has 
never  entered,  ought  not  to  be  sued  alone  as  assignee  of  the 
term  (i). 

*  Liability  of  executor  de  son  tort.  —  An  executor  de  [*290] 
son  tort  is  liable  as  assignee  upon  the  covenants  of  a 
lease,  and  the  executor  of  an  executor  de  son  tort  may  himself 
become  executor  de  son  tort  in  respect  of  the  estate  of  tlie 
original  estate.  Where  the  father  was  executor  de  son  tort 
with  regard  to  a  lease,  and  the  son  upon  his  death  acted  as 
agent  to  the  mother  till  her  death,  and  then  continued  in 
possession  of  the  lease  for  the  benefit  of  himself  and  the  other 
children,  it  was  held  that  he  became  assignee  of  the  lease, 
and  liable  upon  the  covenants  therein  (^). 

Personal  liability  of  executor.  —  An  executor,  SO  far  as  he 
has  assets,  is  no  doubt  liable  upon  the  covenants  of  his 
testator,  and  there  is  strong  authority  for  saying  that  even  if 
the  estate  be  insufficient,  he  is  personally  liable  (?)  ;  but  this 

(c)  Chap.  XI.  Sect.  3  (d).  L.  R.  .384;  Ackland  v.  Pring,  2  M.  & 

(d)  2  Wms.  Exors.  1752  (7th  ed.).  G.  9:37 ;  Lyddall  v.  Dunlop,  1  Wils.  4, 

(e)  Shirreff  v.  Hastings,  L.  R.,  6  5;  1  Wms.  Saund.  1,  note  (1);  but 
Ch.  D.  610  ;  25  W.  R.  842.  see  Kearsley  v.  Oxley,  2  H.  &  C.  806. 

(/)  Paull  V.  Simpson,  9  Q.  B.  365.  (0  Kearsley   v.  Oxley,  2  H.  &  C. 

{(j)  Coghil  r.  Freelove,  3  Mod.  325;  896. 

Pitcher  v.  Tovey,  4  Mod.  71 ;  1  Wms.  (h)  Williams  v.  Heales,  L.  R.,  9  C. 

Saund.   241    b,   note    (5);    2   Wms.  P.  177;  43  L.  J.,  C.  P.  80;  30  L.  T. 

Exors.  1752  (7th  ed.).  20;  22  W.  R.  317. 

(/()  Wollaston  v.  Hakewill,  3  M.  &  (/)  See  Piatt  on  Covenants,  p.  458, 

G.  297  ;  Nation  v.  Tozer,  1  C,  M.  &  and  the  cases  cited,  infra. 
R.  172  ;  Green  v.  Ld.  Listowell,  2  Ir. 

465 


*290    ASSIGNMENT,    BANKRUPTCY,   DEATH,    ETC.     [Ch.  VII.  S.  13. 

naked  question  of  personal  liability  has  not  come  before  the 
courts  for  very  many  years,  and  the  extreme  hardship  of 
making-  an  executor  personally  liable  upon  some  covenants 
(as  to  rebuild  a  house  which  has  been  burnt  down),  is  so 
apparent,  that  an  express  decision  to  that  effect  would  prob- 
ably be  followed  by  remedial  legislation. 

Executor  may  assign  over  to  pauper.  —  An  executor  or  ad- 
ministrator may  discharge  liimself  from  personal  liability  as 
assignee  of  the  term  by  an  assignment  over,  even  to  a  pau- 
per (/?i)  ;  and  if,  not  having  a  sufficiency  of  assets,  he  do  not 
so  assign,  after  first  offering  to  surrender,  he  cannot  thi'ow 
the  resulting  loss  upon  beneficiaries  (m). 

Executor  not  personally  liable  for  rent.  —  The  proper  course 
to  be  pursued  is  that  pointed  out  in  22  &  23  Vict.  c.  35,  s. 
27  (o).      In  cases  to  which  that  act  does  not  apply,  or  where- 
it  is  not  pursued,  an  executor  or  administrator  sued  as  an 
assignee  of  the  term,  and  who  has  not  assigned  over,  may 

plead  —  except  as  to  £ (being  the  full  actual  value  of 

the  demised  premises  during  the  period  in  respect  of  which 
the  rent  is  claimed,  and  which  should  be  paid  into  court,  or 
tlie  claim  for  it  be  otherwise  answered  (/>)  )  —  that  the  term 
did  not  vest  in  him  by  assignment  otherwise  than  as  executor 
or  administrator,  and  that  he  has  not  any  time  since  the 
death  of  the  lessee  received  or  derived,  nor  could  he  during 
any  part  of  that  time  receive  or  derive,  any  proHt  from  the 
said  demised  premises,  except  sums  amounting  to  the  sum 
excepted,  and  that  the  said  demised  premises  liavo  not  since 
the  death  of  the  lessee  yielded  any  profit  whatever,  except  to 
the  amount  excepted ;  and  that  the  defendant  had  not  at  the 
commencement  of  the  action,  nor  has  since  had,  nor  has  any 
goods  or  chattels  which  were  of  the  lessee  at  the  time  of  his 
death  in  the  hands  of  the  defendant  as  executor  (or  adminis- 
trator) as  aforesaid  to  be  administered  {q). 

(m)  Pitcher  v.  Tovcy,  4  Mod.  71  ;  (7)  liillingliurst     v.    Spearman,    1 

Taylor  v.  Slium,  1  \i.  &  P.  21  ;  Wil.soii  Salk.  li!)7  ;  liucklcy  v.  Porter,  1  Salk. 

I'.  VVifrK.  10  East,;]]").  317;   Hiihery  v.  Stevi-ii.s,  4   H.  &  Ad. 

(n)  Rowley  v.  Adams,  4  Myl.  &  Cr.  241  ;  Wollastoii  v.  Hakewill,  3  M.  & 

534.  G.  207  ;   llopwood  v.  Whaley,  G  C.  H, 

(o)  I'ost,2(',0.  744;  G  D.&  L.  342.      . 

(/»;  Patten  r.Kcid.GL.  T.  281, Q.B. 

466 


Cri.  VII.  S.  13]  DEATH.  *291 

*  Breach  of  covenant  to  repair. — But  the  defence  [*291] 
that  the  premises  are  wortli  nothing  does  not  seem 
to  be  available  in  an  action  for  non-repair,  or  for  other 
breaches  of  covenant  running  with  the  land  (not  being  for 
non-payment  of  rent)  (r).  And  it  vi^ould  seem  that  the  ab- 
sence of  assets  is  equally  unavailable  as  a  defence  (s).  The 
preponderance  of  authority  seems  to  be  in  favour  of  this 
rule,  though  it  may  work  extreme  injustice  in  particular 
cases  (as,  for  instance,  where  a  house  is  burnt  down)  ;  and 
the  danger  foreseen  by  Tindal,  C.  J.,  in  Tremeere  v.  Mori- 
son  (^),  viz.,  that  the  landlord  would  have  no  redress  though 
the  property  went  on  deteriorating,  can  rarely  arise  in  prac- 
tice, as  almost  all  leases  have  a  proviso  for  re-entry  in  case  of 
breach  of  covenants. 

If  issue  be  taken  on  the  value  of  the  premises  the  ques- 
tion will  be  whether  they  were  of  any  annual  value  (w),  or 
of  any  value  beyond  the  sum  excepted  out  of  the  defence 
and  paid  into  court  or  otherwise  pleaded  to.  In  estimating 
such  value  the  jury  must  calculate  according  to  the  actual 
annual  value  of  the  pi-emises,  supposing  them  to  be  kept  in 
proper  repair  according  to  the  covenants  in  the  lease,  and 
without  deducting  any  loss  occasioned  by  the  insolvency  of 
an  under-tenant,  or  the  non-payment  of  the  rent  by  him  (2:). 

Continuing  liability  of  executors.  —  An  executor  or  adminis- 
trator cannot  be  sued  as  assignee  of  the  term  where  the  tes- 
tator or  intestate  has  assicrned  it:  nor  for  causes  of  action 
Avhich  accrue  after  the  executor  or  administrator  has  himself 
assigned  it  over :  but  (except  so  fai-  as  protected  by  22  &  23 
Vict.  c.  35,  s.  27)  he  will  continue  liable  as  executor  or  ad- 
ministrator in  respect  of  any  other  assets,  notwithstanding 

(»•)  Tremeere    v.  Morison,  1   Bing.  the  liability  of  the  executor  of  a  les- 

N.  C.  89 ;  Sleap  v.  Newman,  12  C.  B.,  see  is  well  summarized  in  the  notes 

N.  S.  116;  Hornidge  v.  Wilson,  11  A.  to    Dean    .Tnd    Chapter  of  Bristol   v. 

&  E.  G45  ;  Tilvey  v.  Norris,  1  Ld.  Ray.  Guyse,  1  Wms.  Saund.  124  (ed.  1871); 

553;  but  see  per  Bayley,  B.,  in  Reid  see,  too,  Jevens  v.  Harridge,  Id.  1. 

V.  Lord  Tenterden,  4  Tyr.  111.  (k)  Rubery  v.  Stevens,  4  B.  &  Ad. 

(.s)  Tremeere  r.  Morison,  7(/)i  ,si(;»-(7  ;  241. 

Wollaston  v.  Ilakewill,  8  M.  &  G.  320,  (.r)  Hornidge  r.  Wilson,  11  A.  &  E. 

where,   however,   it  is    said   that  the  615;  Kubery  r.  Stevens,  sh/xyi  ;  Reid 

executor  is  not  liable  without  entry.  v.  Ld.  Tenderden,  4  Tyr.  111. 

(/)  The    law  upon   the    subject   of 

467 


*292    ASSIGNMENT,    BANKRUPTCY,   DEATH,   ETC.     [Ch.  VII.  S.  13. 

an}'  such  assignment  (?/).  The  term  vests  in  the  executor 
or  administrator  as  assignee  thereof  without  any  entry  by 
him  (2). 

Only  profits  are  assets.  —  When  an  executor  takes  leasehold 
property  nothing  is  assets  but  the  profits  above  the  rent :  as, 
if  the  land  be  worth  101.  per  annum,  and  51.  is  reserved,  in 
that  case  nothing  is  assets  but  the  51.  above  the  rent  (a). 
The  profits  of  the  land  may  be  inadequate  to  the  rent :  in  a 

variety  of  cases  they  may  be  easily  supposed  insuffi- 
[*292]  cient  for  a  given  *  period,  although  the  lease  may  on 

the  whole  be  beneficial ;  as,  for  instance,  where  rent 
is  claimed  for  the  occupation  of  premises  from  Michaelmas 
to  Lady-day,  where  almost  the  whole  profit  is  taken  in  the 
summer  (i)  :  so  the  profits  for  a  series  of  years  may  be  less 
than  the  amount  of  the  rent,  although  the  lease  for  the 
whole  tei'm  may  be  of  no  small  value,  —  as  in  the  case  of  a 
lease  of  woods,  which  are  fellable  only  once  in  eight  or  nine 
years,  and  the  felling  has  been  very  recent  (<').  In  these 
and  the  like  instances,  the  executor  is  personally  liable  only 
to  the  extent  of  the  profits ;  and  for  such  proportion  of  the 
rent  as  shall  exceed  the  profits,  he  is  chargeable  merely  in 
the  capacity  of  executor,  or,  in  other  words,  as  far  only  as  he 
has  assets,  provided  he  pleads  the  whole  matter  specially  and 
accurately  ((7).  The  profits  of  the  land  are  to  be  ap[)lied  by 
the  executor,  in  the  first  place,  to  the  discharge  of  the  rent, 
and  if  that  fund  prove  insufficient,  the  residue  of  the  rent  is 
pa3'able  out  of  the  general  assets,  and  stands  on  the  same 
footing  with  other  debts  by  specialty ;  and  this  whether  tlie 
rent  be  reserved  by  lease  in'  writing  or  by  i>iuol.  A  lease 
belonging  to  an  intestate,  on  whicli  anotlier  has  a  lien,  is 

(>/)  Ilellior  V.  Casbard,  1  Lev.  127;  (h)  2  AVm.s.  K.xors.  1()22  (Gth  cd.). 

I  Sid.  '2(50 ;  Cogliil  r.  Vreolovo, :)  Mod.  (r)  ll.id. 

;525;  Wilson  v.   Wi^fj;,   10  East,  315;  (r/)  Hiickloy  v.  Pirk,  1   Salk.  .".17; 

llowst;  V.  Webster,  Vclv.  lOo  ;  2  Wms.  Biiliiisluirst  r.  Spearman,  1  Salk.  207  ; 

Exors.  17r)l  (7tli  ed.).  Kubery  v.  Stevens,  4  li.  &  Ad.  241; 

(^)  Wollaston   V.  Ilakewill,  P.  M.  &,  II()rnid<,a>  r.  Wilson,  11    A.  &  E.  04.'.; 

(;.  207;  Atkins  v.   Humphreys,  2   C.  lloi)\vood  r.  Wlialoy,  (5  C.  B.  744;  (5 

IJ.  r,r,4  ■  .">  I).  &  L.  (112  ;  but  see  Kears-  1).  &  L.  :M8;  Collins  v.  Crouch,  l:^  Q. 

ley  V.  O.ikley,  2  II.  &  C.  8')(i.  15.  D.  r,J2;   BuUen  &,  L.   PI.  68;5,  684 

((/)  IIar(jrave's  case,  5  C'o.  U.  31  b,  (.'!rd  ed.). 
cited  4  13.  &  Ad.  245. 

408 


Cn.  VII.  S.  13.]  DEATH.  *293 

assets  in  the  hands  of  the  administrator,  who  has  power  to 
redeem  it  as  well  as  to  dispose  of  the  legal  estate  (e).  So 
an  equity  of  redemption  in  a  sum  of  money  charged  on  real 
estate  is  a  legal  asset  because  the  money  is  recoverable  by 
the  executor  virtute  ol'licii  (/). 

Insurance.  —  In  Fry  w.  Fry  a  lessee  was  bound  to  insure. 
The  insurance  expired  on  the  25th  March.  He  died  on  27 Ih 
March,  without  having  paid  the  premium.  The  house  Avas 
burnt  down  on  the  2Gtli  May,  his  executors  (who  did  not 
prove  till  the  17th  June)  not  having  paid  the  premium.  It 
was  held,  that  they  were  not  personally  liable  to  the  resid- 
uar}^  legatees  for  neglect  in  not  having  kept  up  the  assur- 
ance (^). 

Party-walls.  —  An  administrator  of  a  lessor  has  been  held 
obliofed  to  contribute  as  owner  towards  the  rebuildiuQ^  of  a 
party-wall  under  the  old  Building  Act,  though  not  otherwise 
owner  than  as  administrator,  and  thougli  he  had  no  assets  to 
meet  the  expenses  (^). 

Hovr  executor  may  get  rid  of  personal  liability.  —  The  hard- 
ship of  the  common  law  upon  executors  has  been  somewhat 
modified  by  the  statute  22  &  23  Vict.  c.  35,  which  enables  an 
executor,  having  sufficient  assets  and  taking  advantage  of  the 
act,  to  rid  himself  completely  of  his  personal  liability  under 
any  lease  or  agreement  for  a  lease.  By  section  27  of  this 
act,  "  where  an  executor  or  administrator,  liable  as 
.  such  to  the  rents,  covenants  or  agreements  *  con-  [*293] 
tained  in  any  lease  or  agreement  for  a  lease,  granted 
or  assigned  to  the  testator  or  intestate,  whose  estate  is  being 
administered,  shall  have  satisfied  all  such  liabilities  under  the 
said  lease  or  agreement  for  a  lease  as  may  have  accrued  due 
and  been  claimed  up  to  the  time  of  the  assignment  hereafter 
mentioned,  and  shall  have  set  apart  a  sufhcient  fund  to 
answer  any  future  claim  that  may  be  made  in  respect  of  any 
fixed  and  ascertained  sum  covenanted  or  agreed  by  the  lessee 
to  be  laid  out  on  the  property  demised,  or  agreed  to  be  de- 

(e)  Vincent  v.  Sharp,  2  Stark.  R.  (</)  Fry  v.  Fry,  27  Beav.   146;   28 

507.  L.  J.,  Ch.  593. 

(/)  Cook  V.  Gregson,  3  Drew.  547;  (/<)  Thackor  v.  Wilson,  3  A.  &  E. 

26  L.  J.,  Ch.  706.  142. 

469 


*293   ASSIGNMENT,    BANKRUPTCY,   DEATH,    ETC.     [Cii.  VII.  S.  13. 

mised,  although  the  period  for  laying  out  the  same  may  not 
have  arrived,  and  shall  have  assigned  the  lease,  or  agreement 
for  a  lease,  to  a  purchaser  thereof,  he  shall  be  at  liberty  to 
distribute  the  residuar}-  personal  estate  of  the  deceased  to 
and  amongst  the  parties  entitled  thereto  respectively,  with- 
out appropriating  any  part,  or  any  further  part  (as  the  case 
may  be),  of  the  personal  estate  of  the  deceased  to  meet  any 
future  liabilit}'  under  the  said  lease,  or  agreement  for  a  lease ; 
and  the  executor  or  administrator  so  distributing  the  resid- 
uary estate  shall  not,  after  having  signed  the  said  lease  or 
agreement  for  a  lease,  and  having,  where  necessary,  set  apart 
such  sufficient  fund  as  aforesaid,  be  personally  liable  in 
respect  of  an}-  subsequent  claim  under  the  said  lease  or 
agreement  for  a  lease." 

Right  of  lessor  to  follow  assets.  —  The  section  goes  on  to 
provide,  that  '•  nothing  herein  contained  shall  prejudice  the 
right  of  the  lessor,  or  those  claiming  under  him,  to  follow 
the  assets  of  the  deceased  into  the  hands  of  the  person  or 
persons  to  or  amongst  whom  the  said  assets  may  have  been 
distributed."  Leases  made  before  the  act  are  within  this 
section  (/),  and  so  are  leases  assigned  to  the  testator  or  intes- 
tate (^),  but  a  lease  assigned  to  a  residuary  legatee  is  not  (i). 
It  is  not  clear  whether  an  executor  should  set  apart  a  fund  to 
meet  a  contingent  liability  under  a  lease,  which  he  knows  of, 
but  as  to  which  no  notice  has  been  given  him,  or  claim  made ; 
perhaps  he  may  do  so  for  his  own  indemnity,  but  the  landlord 
has  no  right  to  bring  an  action  to  compel  him  to  do  so  (/). 

By  sect.  28,  the  executor  has  the  like  power  of  getting  rid 
of  personal  liability  under  conveyances  on  chief  rent  or  rent- 
charges,  and  agreements  for  such  conveyances. 

By  sect.  29,  executors  or  administrators  may  advertise 
for  creditors  and  others  to  send  in  their  claims  against  the 
estate  of  the  testator  or  intestate,  and  at  the  expiration  of 
the  time  named  in  the  advertisements  for  sending  in  such 
claims,  are  at  liberty  to  distribute  the  assets  of  the  testator 
or  intestate  amongst  the  parties  entitled  thereto. 

(i)  Dodson  V.  Sammell,  1    Drew.  &  (k)  In  re  Green,  2  De  Gex,  F.  &  J. 

Sm.  r,:;-) ;  ;?0  L.  J.,  rii.  799;  Smith  i-.       121. 
Smitli,  1  Drew.  &,  Siii.  :3«4.  (/)  King  v.  Walcott,  4  Hare,  692. 

470 


Ch.  VII.  S.  13.]  DEATH.  *294 

By  sect.  30,  executors  or  administrators  may,  by  petition 
or  summons,  obtain  the  opinion  of  a  judge  of  the 
Chancery  division  "  on  *  any  question  respecting  the  [*294] 
management  or  administration  of  the  trust  property 
or  the  assets  of  any  testator  or  intestate,"  and  may  act  on 
such  opinion  with  perfect  safety,  except  in  case  of  fraud  or 
wilful  concealment.  Questions  of  construction  affecting  capi- 
tal of  considerable  amount  will  not  be  decided  upon  a  peti- 
tion under  this  section  (w).  Executors  bringing  facts  plainly 
before  the  court  and  distributing  the  assets  under  its  direc- 
tion are  absolutely  protected  against  any  future  claim ;  and 
the  only  remedy  of  a  creditor  on  covenant  or  otherwise  is 
against  the  legatees  (w).  A  lessor  is  not  entitled,  in  respect 
of  a  breach  of  covenant  in  a  lease,  to  follow  the  assets  of  a 
deceased  lessee,  which  had  been  placed  in  settlement  upon 
the  marriage  of  the  lessee's  daughter,  there  being  no  imputa- 
tion as  to  the  honesty  with  which  the  assets  have  been  dealt 
with  (o). 

Where  leaseholds  are  sold  under  an  order  of  the  court 
in  an  administration  action,  and  the  purchase-money  is  paid 
into  court,  the  order  is  a  sufficient  indemnity  to  the  execu- 
tors (jo). 

Use  and  occupation.  —  Actions  for  use  and  occupation  by 
and  against  executors  and  administrators  will  be  treated 
of  hereafter  (g).  Where  there  was  a  lease  by  deed,  and  on 
the  death  of  the  lessee  her  son  applied  to  the  lessor  to 
become  tenant  on  the  same  terms  as  the  lessee,  and  was 
accepted;  it  was  held,  in  an  action  for  use  and  occupation 
against  the  son,  to  whom,  jointly  with  another,  letters  of 
administration  had  been  granted  to  the  estate  of  his  mother 
after  the  commencement  of  the  action,  that  it  was  a  question 


(m)  In  re  Burnett,   10  Jur.   N.   S.  (/))  Waller   v.   Barrett,   24    Beav. 

1098,  Wood,  V.-C;  In  re  Evans,  30  413;  27   L.  J.,  Ch.  214;  Williams  i-. 

Beav.  232.  Headland,  34  L.  J.,  Ch.  20.     It  was 

(n)  Bennett  v.  Lytton,  in  re  San-  otherwise  before  the  passing  of  22  &, 
ford,  2  Johns.  &  H.  155;  Smith  v.  23  Vict.  c.  35.  See  Garratt  «.  Lance- 
Smith,  1  Drew.  &  Sm.  384.  field,  2  Jur.,  N.   S.    177 ;  Brewer  v. 

(o)  Dilkes    v.   Broadmead,   2    Giff.  Pocock,  23  Beav.  310. 
113 ;  29  L.  J.,  Ch.  310  ;  30  Id.  268.  (7)  Chap.  XIV. 

471 


*294  ASSIGNMENT,   BANKRUPTCY,   DEATH,    ETC.    [Ch.  VII.  S.  13. 

for  the  jury  whether  the  defendant  occupied  as  assignee  of 
the  lease  or  upon  a  fresh  taking  (r). 

Wrongs  to  property  committed  by  testator  or  intestate.  — 
Formerly  an  executor  or  administrator  could  not  be  charged 
in  any  case  for  any  personal  wrong  done  by  the  deceased, 
and  therefore  no  action  could  be  brought  against  him  for 
any  such  cause ;  as  for  cutting  down  trees,  or  for  suffering 
his  cattle  to  eat  up  the  plaintiff's  grass;  but  by  3  iSt  4  Will. 
4,  c.  4,  s.  2,  such  actions  may  be  brought  against  executors 
within  six  months  after  administration  commenced  in  respect 
of  wrongs  committed  by  the  deceased  within  six  months 
before  his  death. 

(r)  Drury  Lane  Theatre  v.  Chapman,  1  C.  &  K.  14. 

472 


♦CHAPTER  VIII. 

DETERMINATION   OF   TENANCY. 


[*295] 


SECT.  PAQK 

1.  The  Modes  of  Termination    .  295 

2.  When   the   Term   is   limited 

conditionally 290 

3.  Surrender 29G 

(a)  By  express  Terms  when 

deed  necessary     .     .     .  296 

(b)  By  Operation  of  Law      .  299 

(c)  Operation  of 305 

(d)  By  whom  and  to  whom 

made       307 

4.  Merger 308 

5.  Forfeiture 310 

(a)  How  incurred    generally  310 

(b)  Construction  of   Proviso 

for  Re-entry    ....  312 

(c)  Who    may    avail    them- 

selves of  a  Forfeiture  .  317 

(d)  Entry  of  Lessor      ...  319 

(e)  Demand  of  Rent     ...  319 

(f )  Waiver  of  Forfeiture  .     .  322 


SKCT.  PAOB 

6.  Relief  against  Forfeiture     .  320 

(a)  Before      Conveyancing 

Act 320 

(b)  Under       Conveyancing 

Act 328 

(c)  For     Non-payment    of 

Rent 331 

7.  Notice  to  quit 332 

(a)  Nature  and  Operation  of  332 

(b)  When  necessary   .     .     .  334 

Under      Agricultural 

Holdings  Act    .     .  335 

(c)  When  unnecessary    .     .  338 

(d)  By  whom  and  to  whom 

given 342 

(e)  Form  and  Service  of     .  345 

(f)  Waiver  of  Notice  ...  355 

8.  Exercise  of  Option  to  deter- 

mine Lease 357 

9.  Disclaimer 360 

10.  Death 363 


Sect.  1.  —  The  Modes  of  Termination. 

Enumeration.  —  A  lease  for  years  may  be  determined  in 
various  ways,  viz.:  —  1.  By  effluxion  of  time,  on  the  expira- 
tion of  the  term  granted.^     2.  By  the  happening  of  some 

1  Leases  for  terms  certain  expire  •without  notice.  —  Logan  r. 
Herron,  8  S.  &  R.  (Pa.)  459;  Clark  v.  Smith,  25  Pa.  St.  137;  McCarthy  v. 
Yale,  39  Cal.  586;  Neumeister  v.  Palmer,  8  Mo.  App.  491 ;  Clapp  v.  Paine,  18 
Me.  264;  Stockwell  v.  Marks,  17  Id.  455;  Lithgow  v.  Moody,  35  Id.  214; 
Preble  v.  Hay,  32  Id.  450 ;  Hauxhurst  v.  Soniers,  38  Cal.  563 ;  Jackson  v. 
Parkhurst,  5  Johns.  (N.  Y.)  128 ;  Jackson  v.  M'Leod,  12  Id.  182.  They  are 
for  life,  for  lives,  for  years,  for  months,  for  weeks,  for  days,  &c.  A  lease  may 
provide  for  a  tenancy  at  will  after  expiration  of  a  term.  Van  Rensselaer's 
Heirs  r.  I'enniman,  6  Wend.  (N.  Y.)  509. 

From  year  to  year  ;  limited.  —  A  tenancy  from  year  to  j'car  may  be 
limited  to  expire  at  a  time  certain.  This  will  result  if  parol  lease  is  made  for 
a  term  of  years.     Doe  d.  Parkinson  v.  Ilaubtman,  Bert.  (N.  B.)  645. 

473 


*295  DETERMINATION    OF   TENANCY.        [Ch.  VIII.  S.  1, 

event  upon  which  the  term  is  limited  conditionall3^  3.  By 
a  surrender.  4.  By  merger.  5.  B3'  forfeiture  and  re-entry 
or  ejectment  pursuant  to  some  proviso  or  condition  in  the 
lease,  for  breach  of  covenant,  &c.  6.  By  a  notice  to  quit, 
wJiere  the  tenancy  is  from  y«ar  to  year,  or  for  other  like 
period  (greater  or  less)  ^  determinable  by  notice.^     7.  By  a 


"Where  a  seal  is  required,  a  written  lease  (not  under  seal)  will  have  the 
same  effect  as  oral  lease,  terminating  without  notice  at  end  of  period. 
Caverliill  v.  Orvis,  12  C.  P.  (Ont.)  392. 

^  Shorter  periodical  tenancies ;  how  terminated.  —  These  are  from 
quarter  to  quarter,  Witt  v.  Mayor  of  N.  Y.,  0  Kuhertson  (N.  Y.)  4il  ;  from 
month  to  month,  Anderson  r.  Prindle,  19  ^yend.  fN.  Y.)  391  and  23  Id.  616; 
Gruenewald  v.  Schaales,  17  Mo.  App.  324 ;  McDevitt  v.  Lambert,  80  Ala.  536 ; 
Gunn  V.  Sinclair,  52  Mo.  327  ;  Prickett  v.  Ritter,  16  111.  96  ;  Huyser  v.  Chase, 
13  Mich.  98;  Woodrow  v.  Michael,  Id.  190;  from  ireek  to  week  {per  Wal- 
worth, Chan.,  in  Anderson  v.  Prindle,  23  Wend.  (N.  Y.)  616,  619),  &c. 

Notice  to  terminate  them  is,  at  common  law,  usuall}'  equal  to  the  intervals. 
Statutor}'  notices  are  sometimes  shorter,  but  it  is  usually  held  must  terminate 
with  tlie  periods. 

2  Termination  of  tenancies  at  -will.  — By  the  common  law  they  are  deter- 
minable without  notice,  see  post,  sec.  7,  note,  "Tenancy  at  will;  notice  to 
quit,"  &c.,  other  than  a  reasonable  informal  one  necessary  to  enable  lessee  to 
comfortably  remove  his  family  and  effects,  and  harvest  his  crops. 

Statutory  notices  are,  however,  now  generally  required.  See  post,  ch.  8, 
sec.  7,  (c),  note,  "The  shorter  tenancies." 

In  Maine  these  tenancies  can  only  be  determined  by  the  statutory  notice 
or  by  mutual  consent.  Rev.  Sts.  Ch.  94,  sec.  2;  Cunningham  c.  Horton,  57 
Me.  420 ;  but  see  Sullivan  v.  C.arberry,  67  Id.  531.  The  statute  is  very  sweep- 
ing, and  (if  taken  literally)  would  exclude  termination  by  alienation,  death, 
eviction,  &c.,  as  well  as  prevent  limiting  such  tenancies  upon  conditions. 

In  Massachusetts  a  statutorj'  notice  is  provided,  but  it  is  held  tiiat  parties 
may  agree  upon  a  different  one.  May  v.  Rice,  108  Mass.  150 ;  Davis  v.  Murphy, 
126  Id.  143;  distinguishing  Batclielder  v.  Batclielder,  2  Allen,  105;  or  may 
limit  the  tenancy  on  conditions,  Creech  v.  Crockett,  5  Cush.  133  (for  special 
purpose)  ;  Ashley  v.  Warner,  11  Gray,  4-3,  45  (so  long  as  he  kept  a  good 
school)  ;  Hollis  v.  Pool,  3  Met.  350  (till  sale)  ;  Lyon  v.  Cunningham,  136 
Mass.  5.32,  541  {per  Field,  J.)  ;  Elliott  v.  Stone,  1  Gray,  571  (to  pay  rent  in 
advance  or  leave,  held  a  limitation  terminating  without  entry;  but  sec  contra, 
Elliott  V.  Stone,  12  Cush.  174,  Sliaw,  C.  J.,  giving  the  opinion  in  both  cases), 
the  happening  of  wliich  will  i])so  facto  determine  the  tenancy,  or  tiic  tenancies 
may  be  limited  to  e.xpire  at  a  given  time  without  notice,  Morton,  J.,  in  Davis 
V.  Murpliy,  126  Mass.  143,  144  ;  Sliaw,  C.  J.,  in  Elliott  v.  Stone,  1  Gray,  671, 
574.  Such  limitations  on  tiie  tenancy  do  not  make  it  any  greater  than  a  ten- 
ancy at  will. 

See  further  as  to  comlitional  limitations,  post,  sec.  2,  note,  and  sec.  5,  note, 
"  Forfeiture  clauses." 

Tenan(;ies  at  will  arc  terminated  in  following  among  other  ways  besides  by 
notice  to  (piit,  to  wit:  by  death  of  huMHord,  .Toy  v.  McKay,  70  Cal.  445;  Reed 
V.  Reed,  48  Me.  388;  deatli  of  lessee,  Keating   v.   Moises,  2   Manitol)a,  47; 

474 


Cn.  VIII.  S.  2.]  TERM   LIMITED   CONDITIONALLY.  *296 

notice  to  determine  the  term  at  the  end  of  the  first  seven  or 
fourteen  years  thereof,  or  at  some  other  specified  period, 
l)ursuant  to  a  power  in  the  lease.  8.  By  a  dischiimer  of  the 
reversioner's  title,  where  the  tenancy  is  only  from  year  to 
year,  or  other  less  period,  and  not  for  a  term  of  years.  9.  By 
death  of  the  party  on  wliose  life  the  lease  depends,  as  in  the 
case  of  a  lease  for  lives. ^ 

By  effluxion  of  time.  —  When  the  term  of  years  granted  by 
a  lease  expires  by  effluxion  of  time,  the  lessee  or  his  assigns 
ought  thereupon  to  quit  possession  (a). 


*  Sect.  2.  —  When  the  Term  is  limited  conditionally?  [*296] 

Conditional  limitations  and  conditions.  —  Sometimes  the 
term  itself  is  limited  conditionally,  ex.  gr,  for  forty  years  if 

(o)  For  the  consequence  of  "  Holding  Over,"  see  Chap.  XIV.,  post. 

Robie  V.  Smith,  21  Me.  114;  alienation  by  landlord,  Emmes  v.  Feelej',  132 
Mass.  346 ;  Curtis  v.  Calvin,  1  Allen  (Mass.)  215  ;  Howard  v.  Merriam,  5 
Cush.  (Mass.)  563,  574;  McFarland  v.  Chase,  7  Gray  (Mass.)  462;  Esty  v. 
Baker,  50  Me.  325;  Nelson  v.  Cook,  12  Q.  B.  U.  C.  22;  written  lease  for 
term  certain  by  landlord  to  third  party,  Groustra  v.  Bourges,  141  Mass.  7 
(and  it  matters  not  what  were  lessor's  motives)  ;  Merger  Doe  d.  Cliff  v.  Conn- 
away,  Bert.  (N.  B.)  574,  578,  579  (as  where  lessee  acquires  the  reversion)  ; 
lessee  making  a  sub-lease  (at  option  of  lessor),  Reckhow  v.  Schenck,  43  N.  Y. 
448;  Cook  v.  Cook,  28  Ala.  660,  668  {per  Walker,  J.);  alienation  by  lessee, 
Little  V.  Palister,  4  Greenl.  (Me.)  209;  by  disclaimer  or  inconsistent  acts 
directly  or  impliedly  disaflSrming  lessor's  title,  Campbell  v.  Procter,  6  Greenl. 
(Me.)  12  (pointing  out  the  property  as  his  own  to  be  levied  upon)  ;  Bennock 
V.  Whipple,  12  Me.  346  (receiving  a  deed  from  a  stranger)  ;  Ware  v.  Wad- 
leigh,  7  Greenl.  (Me.)  74;  Currier  v.  Earl,  13  Me.  216;  Bryant  v.  Tucker,  19 
Id.  383 ;  and  (also  at  election  of  lessor)  by  voluntary  waste,  Daniels  v.  Fond, 
21  Pick.  (Mass.)  367. 

1  Termination  by  total  destruction.  —  It  is,  also,  held  in  America  that 
tenancies  may  be  terminated  by  total  destruction  of  demised  thing.  Stockwell 
V.  Hunter,  11  Met.  (Mass.)  448  (lease  of  basement,  whole  building  burned) ; 
Graves  v.  Berdan,  26  N.  Y.  498  (lease  of  basement  and  chamber,  whole 
building  burned)  ;  Kerr  v.  Merchants'  E.x.  Co.,  3  Edw.  Ch.  (N.  Y.)  315;  and 
Winton  v.  Cornish,  5  Ohio,  477  ;  and  Womack  v.  McQuarry,  28  Ind.  103;  and 
Alexander  v.  Dorsey,  12  Ga.  12  (all  cases  of  leases  of  apartments  in  buildings 
which  were  wholly  destrojcd  by  fire). 

If  any  part  of  the  demised  thing  is  not  destroyed,  as  (in  case  of  lease  of 
v/hole  building)  where  land  remains,  the  tenancy  continues,  and  tenant 
remains  liable  for  rent.  See  post,  ch.  10,  sec.  7,  note,  "  Destruction  of  demised 
buildings  by  fire." 

2  Terms  limited  conditionally  expire  w^ithout  notice.  —  Examples  : 
So  long  as  lessee  remains  postmaster,  Easton  v.  Mitchell,  21  III.  App.  189 
(expired  with  expiration  of  commission)  ;  so  long  as  lessee  shall  keep  fur- 

475 


*296  DETERMINATION   OF   TENANCY.         [Cu.  VIII.  S.  2. 

the  lessee,  or  some  other  person  or  persons  therein  named 
shall  so  long  live.  In  such  case  the  term  will  determine  at 
the  end  of  the  forty  years,  or  on  the  death  of  the  person  or 
persons  named,  which  shall  fii'st  happen  (6).  Where  a  cer- 
tain term  of  years  is  granted  provided  the  lessee  shall  so 
long  continue  to  occupy  the  premises  personally,  it  will  cease 
whenever  he  parts  with  the  possession,  even  by  compulsion 
of  law,  as  by  his  becoming  bankrupt  (c).  It  was  held  in  an 
old  case  that  a  lease  for  twenty-one  years,  if  the  lessee  con- 
tinue so  long  in  the  service  of  the  lessor,  was  not  determined 
by  the  death  of  the  lessor  (c?)  ;  and  in  another  old  case,  that 
if  a  lease  of  a  house  was  made  to  a  widow  for  forty  years, 
sub  conditlone  quod  si  tamdiu  vixerit  sola  et  inhabitaverit,  the 
term  passed  to  her  executor  upon  her  death  unmarried 
within  the  term  (e)  :  but  these  rulings  seem  hardly  to  be 
correct,  the  first  because  the  contract  of  service  terminates 
with  the  death  of  the  master,  and  the  second  because  the 


(6)  Cole  Ejec.   402 ;   Hughes    and  (d)  Wrenford  v.  Gyles,  Cro.  Eliz. 

Crowther's  case,  13  Co.  R.  66;  Brud-       643;  Nov,  70. 
nell's  case,  5  Co.  R.  9.  (e)  Hardy  v.  Seyer,  Cro.  Eliz.  414. 

(c)  Doe  d.  Lockwood  v.  Clarke,  8 
East,  185. 

nace  and  buildings  on  premises,  Cook  v.  Bisbee,  18  Pick.  (Mass.)  527  (but  if 
buildings  are  burned,  lessee  has  right  to  rebuild  them)  ;  during  the  existence 
of  said  clut),  Alexander  v.  ToUeston  Club,  110  111.  65  (continued  notwith- 
standing subsequent  incorporation  of  the  club)  ;  so  long  as  he  "  kept  a  good 
school,"  Ashley  v.  Warner,  11  Gray  (Mass.)  43  ;  lease  of  ferry  for  season  of 
1855,  Eraser  v.  Drynan,  4  Allen  (N.  B.)  74  (terminates  with  tlie  freezing  of 
the  river  (Miramiciii),  or  at  least  upon  Dec.  31,  1855)  ;  during  continuance 
of  partnersiiip,  Russell  v.  McCartney,  21  Mo.  App.  544  ;  to  firm  for  firm  pur- 
poses, Johnson  v.  Hartshorne,  52  N.  Y.  173,  177  (terminated  by  dissolution  of 
firm  tliough  five  years'  lease)  ;  for  specified  business  purposes,  Horner  v. 
Leeds,  25  N.  .7.  L.  106;  Hurd  v.  Gushing,  7  Pick.  (Mass.)  169,  174;  so  long 
as  tlie  land  should  be  occupied  and  overflowed  as  a  mill  pond,  Kerr  v.  Bearin- 
ger,  29  Q.  B.  U.  C.  340. 

To  tliese  sliould  be  added  leases  with  purchase  options,  Knerr  v.  Bradley, 
105  Pa.  St.  190;  Forge  v.  Reynolds,  18  C.  P.  U.  C.  110;  Sutherland  v. 
Buchanan,  9  Chy.  (Ont.)  135,  purcliMse  covenants,  Stewart  v.  Long  I.  R.  R. 
Co.,  102  N.  Y.  601  ;  Bostwick  v.  Frankfield,  74  N.  Y.  207,  and  forfeiture 
clauses.     See  post,  sec.  5,  notes. 

Tenancies  may  be  limited  upon  will  of  lessor,  Folts  v.  Huntley,  7  Wend. 
(N.  Y.)  210,  or  upon  will  of  lessee.  Ffliiiger  v.  Lewis,  32  Pa.  St.  307.  See 
ante,  sec.  1,  notes,  for  examples  of  limitations  upon  tenancies  at  will  and  from 
year  to  year. 

476 


Ch.  VIII.  S.  3.]      SURRENDER    (liY   EXPRESS   TERMS).  *297 

meaning  of  the  parties  appears  to  have  been  that  the  lease 
should  be  for  the  life  of  the  widow. 

Devise  of  house  rent  free,  &c.  —  Where  the  testator  ap- 
pointed the  defendant  to  be  his  agent,  "  to  live  rent  free  in 
my  house  as  long  as  he  continued  agent,  that  is,  as  long  as 
he  does  the  business  honestly  and  to  the  satisfaction  of  the 
trustees,"  it  was  held  that  the  direction  of  the  testator  was 
only  a  recommendation  to  the  trustees  to  continue  the  de- 
fendant as  agent,  and  that  they  might  eject  him  from  the 
house,  unless  the  defendant  could  prove  the  dismissal  to  be 
malicious  (/)• 

Re-entry.  —  Upon  the  breach  of  any  condition  the  lessor  or 
his  assigns  may  re-enter  or  maintain  an  ejectment,  without 
any  express  proviso  for  re-entry  (//).  A  proviso  in  a  lease 
with  no  penalty  annexed  is  a  condition ;  but  if  a  penalty  is 
annexed  it  is  a  covenant  (1i). 


Sect.  3.  —  Surrender. 

■   (a)  Surrender  by  express  Terms. 

What  is  a  surrender.  —  A  surrender  is  the  yielding  up 
an  estate  for  life  or  years  to  him  who  has  the  imme- 
diate estate  in  reversion  or  remainder,  wherein  the 
*  estate  for  life  or  j-ears  may  merge,  by  mutual  agree-  [*297] 
ment  (i).  The  party  making  the  surrender  is  called 
the  surrenderor,  and  the  party  to  whom  it  is  made  the  sur- 
renderee. It  differs  from  a  release  in  this  respect,  that  the 
release  operates  by  the  greater  estate  descending  upon  the 
less ;  whereas  a  surrender  is  the  falling  of  a  less  estate  into 
a  greater  (k).  The  proper  operative  words  of  a  surrender 
are  "surrender  and  yield  up"(^).  If  a  lessee  reserve  to 
himself  any  interest  in  or  part  of  the  estate,  it  is    no  sur- 

(/)   Belaney  v.  Kelly,  24  L.  T.  738.  (/)  1  In.st.  337  (b)  ;  Smith  L.  &  T. 

{g)  Harrington  v.  Wise,  Cro.  Eliz.  303  (2nil  ed.). 

48(3,  cited    8    B.  &    C.  316;    Earl    of  {k)  Smith  v.  Maplehack,  1    T.  R. 

I'embroke    v.  Sir    H.   Berkeley,  Cro.  441 ;  Williams  r,  Saw3'er,  3  B.  &  B.  70. 

Eliz.  384,  560;    Knight  ;•.  Mory,  Id.  (/)  Smith  L.  &  T.  304   (2nd   ed.)'. 

00  ;  see  post.  Sect.  5,  "  Forfeiture."  Sec  Forms  of  Surrenders,  post,  Appeii- 

(A)  Simpson  v.  Titerell,  Cro.  Eliz.  di.x  B,  Sects.  30,  31,  32,  33. 
242. 

477 


*297  DETERMINATION    OF   TENANCY.         [Cn.  VIII.  S.  8. 

render  (m)  ;  nor  does  a  surrender,  it  seems,  operate  as  such 
unless  accepted  by  the  reversioner  (n). 

Surrenders  must  be  in  vrriting,  and  if  for  more  than  three 
years  by  deed.  —  Every  surrender,  by  the  act  of  the  parties, 
must  be  in  writing,  and  every  surrender  of  a  term  of  more 
than  three  years  must  be  by  deed.^  This  is  the  effect  of  the 
thu-d  section  of  the  Statute  of  Frauds,  and  of  the  third  sec- 
tion of  8  &  9  Vict.  c.  109,  the  hiter  enactment  providing  that 
if  a  deed  be  necessary  for  the  creation  of  the  term,  a  deed  is 
requisite  to  its  surrender  (o). 

By  the  Statute  of  Frauds  (29  Car.  2,  C.  3),  S.  3,  "  no  IcaseS, 
estates  or  interests,  either  of  freehokl  or  of  term  of  years,  or 
any  uncertain  interest  not  being  copjdiokl  or  customary  in- 
terest, of,  in,  to  or  out  of  any  messuages,  manors,  lands,  ten- 
ements or  hereditaments,  shall  be  assigned,  granted  or  sur- 
rendered, unless  it  be  by  deed  or  note  in  writing,  signed  by 
the  party  so  assigning,  granting  or  surrendering  the  same,  or 
their  agents  thereunto  lawfully  authorized  by  writing,  or  by 
act  and  operation  of  law." 

By  8  &  9  Vict.  c.  106,  s.  3,  "A  surrender  in  writing  of  an 
interest  in  any  tenements  or  hereditaments,  not  being  a  copy- 
hold interest,  and  not  being  an  interest  which  might  by  law 
have  been  created  without  writing  (j**),  made  after  the  1st 
day  of  October,  1845,  shall  be  void  at  law  unless  made  hy 
deecir 

No  surrender  by  mere  cancellation.  —  It  has  been  held  that 
a  lease  caniiot  be  surrendered  b}'  mere  cancellation  (</) ;  and 
it  has  been  held  also,  where  a  lease  appeared  to  have  had  the 
names  of  the  j)a]'ties  torn  off,  that  tliere  was  neither  a  sur- 

(m)  Com.  Dip.  tit.  Surrender  (H.)  ;  three  years  from  the  making  thereof 

Bac.  Abr.  tit.  Leases  (S.  8) ;  Co.  Lit.  wiieroupoii  tlic  rent  reserved  unto  tiie 

337.  hindlord  sliail  amount  imto  two-thirds 

(n)  Coles  i\  Evanson,  19  C.  B.,  N.  S.  parts  at  least  of    tiie  full    improved 

382.  value." 

(o)  iSeo  McGartli  v.  Shannon,  17  Ir.  (7)  lioe  v.  Arehbishop  of  York,  H 

R.,  C.  L.  128.  East,  8(5;  Ld.  Ward  v.  Lumley,  5  H. 

{p)  I.  e.  by  Sect.  1  of  the  Statute  &  N.  87,  (550;  29  L.  J.,  Ex.  322. 
of   Frauds,  "  a    lease   not  exceeding 

'  III  United  States  usually  rex('ei)t  wlicrc  lease  is  under  seal)  neither  assign- 
ment nor  .surrender  need  be.      hi  Canadian  I'rovinees  the  rule  is  otherwise. 

478 


Cii.  VIII.  S.  3.]      SURRENDER    (l5Y    EXPRESS    TERMS),  *298 

render  by  operation  of  law,  nor  prima  facie  evidence  of  a 
surrender  by  deed  or  note  in  writing  (r). 

Conditional  surrender.  —  A  lessee  may  surrender  upon  con- 
dition, and  if  the  condition  be  broken,  the  particular  estate 
is  revested  (s) ;  therefore,  if  a  lessee  for  years  surrender  his 
whole  term  to  the  original  lessor  upon  condition, 
*  he  may,  upon  non-performance  of  the  condition,  [*298] 
re-enter  and  revive  the  term  (t}. 

When  may  surrender  be  made.  —  The  lessee  cannot  before 
entry  merge  the  term  by  a  surrender,  because  till  entry 
there  is  no  term  and  no  reversion  wherein  the  possession 
may  be  merged ;  but  if  the  lessee  enter  and  assign,  the  as- 
signee may  before  entry  surrender  his  term  to  the  lessor  (m). 
But  it  is  not  necessary  that  the  surrenderor  of  a  lease,  to 
begin  at  a  future  day,  should  be  in  possession  in  order  to 
make  a  surrender  before  the  period  of  commencement :  thus, 
if  a  lease  be  to  commence  at  ?iliehaelmas  next,  and  the  lessee 
take  a  new  lease  uncler  seal  before  Michaelmas,  it  is  a  sur- 
render in  law  of  the  first  lease  (a;).  As  to  surrender  of 
leases  in  futuro  or  future  interests,  there  is  this  distinction 
to  be  observed,  that  a  lessee  for  years  of  a  term  to  begin 
at  a  day  to  come  cannot  surrender  it  by  an  actual  surren- 
der before  the  day  of  the  term  begin,  but  he  may  by  a  sur- 
render in  law  (?y).  Whenever  a  deed  purporting  to  be  a 
surrender  cannot  operate  as  such,  it  will  probably  take  effect 
as  an  assignment  or  as  a  release  of  the  right  to  the  term,  uf 
res  magis  valcat  quam  pereat. 

Requisites  of  good  surrender.  —  In  order  to  make  a  good 
surrender  of  lands  by  deed,  and  to  make  them  pass  by 
such  a  surrender,  these  things  are  requisite:  —  1.  That  tlie 
surrenderor  be  a  person  able  to  surrender,  and  that  he 
have  an  estate  in  possession  of  the  thing  surrendered  at  the 
time  of  the  surrender  made.  2.  That  the  surrender  be  tf> 
him  who  has  the   next  immediate   estate   in  remainder  or 


(r)  Doe  d.  Courtail   v.  Thomas,  9  (m)  Bac.  Abr.  tit.  Leases  (S.  2). 

B.  &  C.  288.  (x)  Shep.  Touch.  302. 

(.s)  Co.  Lit.  218  b.  (//)  Id.  304 ;  Ive  v.  Sims,  Cro.  Eliz. 

(/)  Lh)y(i  y.  Lanj^fonl,  2  Mod.  17G;  521  ;    Hutchins  v.  Martin,  Cro.  Eliz. 

Uao.  Abr.'  tit.  Leases  (S.  3).  605. 

479 


*299  DETERMINATION    OF    TENANCY.        [Ch.  VIII.  S.  3. 

reversion,  and  that  there  be  no  intervening  estate  coming 
between.  3.  That  there  be  a  privity  of  estate  between 
the  surrenderor  and  the  surrenderee.  4.  That  the  surren- 
deree have  a  higher  and  greater  estate  in  the  thing  surren- 
dered than  the  surrenderor  hath,  so  that  the  estate  of  the 
surrenderor  ma}^  be  drowned  therein.  5.  That  he  have  the 
estate  in  his  own  right,  and  not  in  the  right  of  another. 
6.  That  he  be  sole  seised  of  this  estate  in  remainder  or  re- 
version, and  not  in  joint-tenancy  (2).  7.  That  apt,  or  at  all 
events  sufficient,  operative  words  be  used  (a).  Those  com- 
monly employed  are  "surrender,  grant,  and  yield  up,"  or 
"  assign  and  surrender."  But  no  particular  words  are  essen- 
tial (6).  Where  a  deed  is  not  required  by  8  «fe  9  Vict.  c. 
106,  s.  3  (f),  any  instrument  in  writing  duly  signed,  and 
expressing  an  immediate  purpose  of  giving  up  the  estate 
on  the  part  of  the  tenant,  if  accepted  by  the  landlord,  will 
be  sufficient  (<i).     But  such  acceptance   would  seem  to  be 

necessary  (e). 
[*299]       *  Instances  of  surrenders.  —  A  written  instrument  in 

this  form  :  —  "  We  do  hereby  renounce  and  disclaim, 
and  also  surrender  and  yield  up  all  right,  &c.,"  a  tenancy 
from  year  to  year  being  in  existence,  has  been  held  a  surren- 
der and  not  a  disclaimer  (/).  A  written  request  by  the 
tenant  to  his  landlord  to  re-let  the  premises  to  some  other 
person  may,  when  acted  on,  amount  to  a  surrender  by  act 
and  operation  of  law  (^).  A  written  notice  given  b}'-  the 
tenant  of  his  intention  to  quit  at  a  time  when  he  believed 
his  tenancy  to  expire,  but  which  is  afterwards  discovered 
not  to  be  the  time,  does  not  operate  as  a  surrender  (A). 

(s)  Shep.  Touch.  303  ;  2  Blac.  Com.  (^  Per  Bylcs,  J.,  in  Colics  i-.  Evan- 

.33G  ;  but  sec  contra,  Shcp.  Touch.  308.  son,  19  C.  B.,  N.  S.  382. 

(a)  Post,  note  {(I).  (/)  Doe  d.  Wyatt  v.  Stagg,5  Bing. 

(J>)  See  usual  Forms  of  Surrenders,  N.  C.  504. 

post,  Ai)pin(li.\  B.,  Sects.  30-33.  (7)  Nickclls   i'.    Atherstone,    10  Q. 

(c)  Ante,  274.  B.  044. 

Id)  Farmer  v.  Bogers,  2   Wils.  2C>;  (h)  Lypn  i-.  Reed,  13  M.  &  W.  285; 

Smith    V.  Maplehaek,  1    T.    K.    441;  Doe  d.  Miirrell  v.   Milwanl,  3  M.  & 

Wedflall   V.   Capes,   1    M.  &  W.  50;  \V.  328;  Bessell  v.  Landsberg,  7  Q. 

Harrison  v.  Blackburn,  17  C.  B.,  N.  S.  B.  G38. 
079,  G80. 

480 


Ch.  Vm.  S.  3.]     SUIIUENDER    (bY   OPERATION   OF    LAW).      *299 


(b)  Surrender  hy  Act  and   Operation  of  La^v. 

Surrender  by  acceptance  of  a  new  lease.  —  Surrenders  by 
"  act  and  operation  of  law,''  ^  or  implied  surrenders,  are  ex- 
cepted in  the  Statute  of  Frauds  (i),  and  are  not  affected  by 

(«■)  Ante,  274;  Sliep.  Touch.  iJOO;  Com.  Dig.  tit.  Surrender  (L.  1)  ; 
Perk.  c.  9. 

^  Surrender  (by  operation  of  la^v)  results  from  abandonment  with  con- 
sent. Aniory  r.  Kannoffsky,  117  Mass.  351  (new  tenant  taken)  ;  'J'albot  v. 
Wliipple,  14  Allen  (Mass.)  177  (lessor  resumed  possession)  ;  Kandall  v.  Rich, 
11  Mass.  494  ;  and  Matthias  v.  Pace,  3  Russ.  &  Geld.  (N.  S.)  360  (keys  given 
up,  premises  relet)  ;  Philip  v.  McLaughlin,  24  N.  B.  532  (delivery  to  third 
party  at  request)  ;  Elliott  r.  Aiken,  45  N.  H.  30  (delivery  and  acceptance  of 
key)  ;  Boehm  v.  Rich,  13  Daly  (N.  Y.)  62  ;  Vandekar  v.  Reeves,  40  Hun  (N. 
Y.)  430;  and  Schieffelin  v.  Carpenter,  15  Wend.  (N.  Y.)  400,  407  {per  Nelson, 
Ch.  J.)  ;  Hesseltine  v.  Seavey,  16  Me.  212,  214  {per  Shepley,  J.)  ;  Vegely  v. 
Robinson,  20  Mo.  App.  19!);  Forbes  v.  Smiley,  56  Me.  174;  Wallace  v.  Ken- 
nelley,  47  N.  J.  L.  242;  Smith  v.  Niver,  2  Barb.  (N.  Y.)  180;  Randall  v.  Rich, 

11  Mass.  494.     In  several  of  above  cases  leases  were  under  seal. 

An  unaccepted  abandonment  is  not  a  surrender.  Auer  v.  Penn,  99  Pa. 
St.  370;  Gillis  v.  Morrison,  22  N.  B.  207;  Withers  ;.•.  Larrabee,  48  Me.  570; 
Lucy  V.  Wilkins,  33  Minn.  441  (cases  of  delivery  up  of  key  without  accept- 
ance of  possession)  ;  Williams  v.  Ackerman,  8  Or.  405 ;  Doty  v.  Gillett,  43 
Mich.  203;  Conn.  Mut.  Life  Ins.  Co.  v.  U.  S.,  21  Ct.  of  Claims,  195;  Rollins 
V.  Moody,  72  Me.  135;  Thomas  v.  Sanford  Steamship  Co.,  71  Id.  548. 

Authorized  by  statute. — In  New  York  the  statutes  give  right  to  sur- 
render if  premises  become  imtenantable  without  fault  of  lessee.  Laws  of 
1860,  chap.  345.  Tliis  right  may  be  waived  in  lease.  Butler  v.  Kidder,  8? 
N.  Y.  98.  Fears  that  premises  innij  become  untenantable  are  not  sufficient. 
Tallman  v.  Gashweiler,  13  Daly  (N.  Y.)  555.  Defects  in  plumbing,  causing 
overflow,  odors,  St.  Michael's  P.  E.  Church  v.  Behrens,  13  Id.  548,  damages, 
Vann  v.  Rouse,  94  N.  Y.  401,  or  escape  of  sewer  gas,  Bradley  v.  De  Goicouria, 

12  Daly  (N.  Y.)  392,  have  been  held  sufficient. 

Justifiable  abandonment  -without  consent.  —  Lessee  may  abandon  if 
lease  was  taken  tln-cnigh  material,  false,  fraudulent  representations  if  he  exer- 
cise the  right  seasonably.  Conklin  v.  White,  17  Abbott's  N.  C.  (N.  Y.)  315, 
317  {per  Hyatt,  J.)  (house  not  as  represented)  ,  Lawrence  v.  Burrell,  17  Id. 
312  (defect  in  flues,  chimneys,  &c.)  ;  Jackson  v.  Odell,  12  Daly  (N.  Y.)  345, 
354  (abandonment  after  several  months'  occupancy)  ;  Wallace  r.  Lent,  1 
Daly,  481  (failure  to  disclose  existence  of  deleterious  smells). 

A  tenant  cannot  abandon  premises,  on  account  of  gases  and  odors  from 
adjacent  premises.  Franklin  v.  Brown,  53  N.  Y.  Superior  Ct.  474  ;  Sultphin  v. 
Seebas,  12  Daly  (N.  Y.)  1.39. 

It  has  been  held  that  he  cannot  abandon  premises  if  the  misrepresentations 
were  not  in'lfullij  false,  even  though  condition  were  injurious  to  health.  Coul- 
son  V.  Whiting,  12  Id.  408. 

Eviction,  actual  or  constructive,  general  or  partial,  justifies  surrender. 
Warren  v.  Wagner,  75  Ala.  188,  204  (partial  eviction)  ;  Simers  v.  Saltus,  3 
Denio  (N.  Y.)  214  (constructive  eviction). 

See  post,  ch.  10,  sees.  6  and  7,  notes. 

481 


*299  DETERMINATION    OF   TENANCY.        [Ch.  VIII.  S.  3. 

tlie  8  &  9  Vict.  c.  106,  s.  3,  whicli  only  applies  to  surrenders 
made  in  writing  (^).  Of  this  sort  are  surrenders  created  by 
the  acceptance  of  a  new  lease  from  the  reversioner  either  to 
begin  presently,  or  at  any  time  during  the  continuance  of 
the  first  lease  ;  for  the  acceptance  of  a  valid  new  lease  im- 
plies a  surrender  of  the  existing  lease  (/),  and  operates  as 
a  surrender  thereof  b}-  act  and  operation  of  law  (m),^  but  not 
if  the  second  lease  be  void  or  voidable  (w),  or  if  there  be  a 
mere  agreement  for  a  future  lease,  and  not  an  actual  de- 
mise (o).^  The  reason  why  such  acceptance  of  a  new  lease 
operates  as  a  surrender  of  the  first  is,  because  the  lessee,  by 
accepting  the  new  lease,  has  been  party  to  an  act,  the  valid- 
ity of  which  he  is  afterwards  estopped  from  disputing,  and 
which  would  not  be  valid  if  the  first  lease  continued  to 
exist,  for  he  would  be  estopped  from  saying  that  the  lessor 
had  not  power  to  make  the  new  lease ;  and  as  the  lessor 
could  not  grant  the  new  lease  until  the  first  lease  was  sur- 
rendered, the  acceptance  of  the  new  lease  is  of  itself  a 
surrender  of  the  first  (jo). 

What  is  a  sufEcient  new  lease.  —  If  a  lessee  for  twenty 
years  take  a  lease  for  ten  years  to  begin  at  Michaelmas  next, 
there  is  no  doubt  but  that  the  term  of  twenty  years  is  sur- 

(^0  Ante,  274.  (n)  Post,  278. 

(/)  Davison  d.  Bromley  v.  Stanley,  (o)  John   v.   Jenkins,   1    Cr.  &  M. 

4    Burr.    2210;    Com.    Dig.    tit.   Sur-  227;  Foquet  v.  Moore,  7  Exch.  870; 

render  (I.).  Cannan  v.  Hartley,  9  C.  B.  0.54,  048  ; 

(/n)   Koll.     Abr.     tit.     Surrender;  Badeley  v.  Vigeurs,  4  E.  &  B.  71 ;  23 

Crowley  r.   Vitty,  7    Exch.   310;    21  L.  J.,  Q.  B.  377. 

L.  J.,  Ex.  13(5 ;    Furnivall  v.  Grove,  (p)  Lyon  r.  Reed,  13  M.  &  W.  285  ; 

8  C.  B.,  N.  S.  400 ;  30  L.  J.,  C.  P.  3.  Bessell  v.  Landsberg,  7  Q.  B.  038. 

^  Surrender  by  acceptance  of  new  lease.  —This  implies  surrender  of 
old,  Hong  V.  Carpenter,  18  HI.  App.  555  ;  Jungerman  t".  Bovee,  10  Cal.  354  ; 
Livingston  i-.  I'otts,  10  Johns.  (N.  Y.)  28;  Van  Rensselaer's  Heirs  v.  Penni- 
man,  0  Wend.  (N.  Y.)  500  ;  Donkersley  v.  Levy,  38  Mich.  54,  though  old 
were  under  seal  and  new  by  j)arol.  Ryan  v.  Kircliberg,  17  111.  App.  132  ; 
Smith  V.  Niver,  2  Barb.  (N.  Y.)  180. 

Old  lease  may  be  impliedly  surrendered  or  cancelled  by  giving  new  lease 
to  third  party,  with  consent  of  lessee.  Wallace  V.  Kennelly,  47  N.  J.  L.  212  ; 
Vandekar  r.  Reeves,  40  Hun  (N.  Y.)  430. 

2  In  Schieffclin  i-.  Carpenter,  15  Wend.  (N.  Y.)  400,  it  was  held  that  if  the 
new  parol  agreement  was  unperformed,  though  possession  were  taken  under  it, 
there  was  no  surrender. 

482 


Cii.  VIII.  S.  3.]     SURIIENDER    (l5Y    OPERATION    OP   LAW).      *oOO 

rendered  or  determined  immediately ;  for  by  tlie  lessee's 
acceptance  of  the  new  lease,  he  admits  that  the  lessor  is  in 
a  situation  to  demise  to  him  notwithstanding  the  existence 
of  the  other  lease ;  and,  indeed,  by  such  acceptance 
the  lessor  has  power  to  make  a  new  lease  *  during  [*300] 
the  former  (^q).  But  where  a  lessee  for  twenty-one 
years  took  a  lease  of  the  same  lands  for  forty  years,  to 
begin  immediately  after  the  death  of  J.  S.,  it  was  held  that 
this  was  not  any  present  surrender  of  the  first  term,  because 
J.  S.  might  wholly  outlive  that  term,  and  then  there  would 
be  no  union  to  work  a  surrender:  and  it  was  considered  that 
in  the  meantime,  the  chances  being  equal,  whether  he  would 
survive  it  or  not,  the  first  terra  should  not  be  hurt  till  that 
contingency  happened ;  but  that  if  J.  S.  died  within  the  first 
term,  then  what  remained  of  it  was  surrendered  and  gone  by 
the  taking  place  of  the  second  (r).  Where  the  lessee  for 
years  of  a  house  accepts  a  grant  of  the  custody  of  the  same 
house,  it  is  a  surrender ;  for  the  custody  of  a  thing  which 
was  let  before,  is  another  interest  in  the  same  thing  leased, 
and  cannot  stand  with  the  first  lease  (s)  :  and  if  the  first 
lease  be  of  the  land  itself,  and  the  second  lease  of  the  ves- 
ture of  the  same  land,  it  is  a  surrender  of  the  first  lease  :  so 
it  is  if  a  lessee  accept  a  grant  of  common,  or  rent  out  of  the 
same  land,  to  commence  at  a  certain  day  within  the  term  (^). 
If  the  king  [or  queen  regnant]  make  a  demise  for  years, 
the  acceptance  of  a  new  lease  is  no  surrender  of  the  first 
lease  (it)  :  so  if  a  lessee  accept  a  grant  of  a  thing  consistent 
with  the  lease  of  the  land,  it  is  no  surrender ;  as  if  the  lessee 
of  a  manor  accept  the  grant  of  a  bailiwick,  or  the  steward- 
ship of  the  same  manor ;  or  if  he  accept  the  office  of  park- 
keeper  of  the  same  park  for  his  life,  it  is  no  surrender,  for 
the  subsequent  grant  is  merely  collateral,  and  not  of  the 
thing  itself  (a:)  ;  but  where  a  lessee  for  years  of  an  advow- 

(r/)  Ive   V.   Sams,    Cro.   Eliz.  521;  (<)  Cora.  Dig.  tit.  Surrender  (1. 1) ; 

Hutchins    v.   Martin,    Id.   604 ;    Bac.  Mellows  v.  May,  Cro.  Eliz.  874. 

Abr.  Leases  (S.  2)  ;  2  Smith  L.  C.  (»)  Brook  ?•.'  Goring,  Cro.  Car.  197. 

713  (6th  ed.).  (r)  Gie  v.  Rider,  1  Sid.  75;  Gybson 

(r)  Bac.  Abr.  tit.  Leases  (S.  3).  v.  Searls,  Cro.  Jac.  176,  184 ;  P^arl  of 

(s)  Gybson  v.  Searls,  Cro.  Jac.  177.  Arundel  v.  Lord  Gray,  2  Dyer,  200 

b ;  Woodward  v.  Aston,  1  Ventr.  296. 

483 


*301  DETERMINATION   OF   TENANCY,         [Ch.  VIII.  S.  3. 

son  was  piesented  to  the  aclvowson  by  the  lessor  it  was 
adjudged  to  a  surrender  of  his  term  (i/). 

"What  does  not  create  a  surrender.  —  A  recital  in  a  second 
lease,  that  it  was  granted  in  consideration  (amongst  other 
things)  of  a  surrender  of  a  prior  lease  of  the  same  premises, 
is  not  a  surrender  by  deed  or  note  in  writing  of  such  prior 
lease,  as  it  does  not  purport  to  be  of  itself  a  surrender  or 
yielding  up  of  the  interest  (s).  A  mere  agreement  for  a 
new  lease  is  not  sufficient  to  create  an  implied  surrender  of 
the  previous  one  (a)  ;  so  an  agreement  between  the  lessor 
and  a  stranger,  that  the  lessee  shall  have  a  new  lease,  is  no 
surrender  (^) :  and  if  a  lessee  accept  a  new  lease  in  trust 
for  another  it  is  no  surrender  (c).  But  it  seems  that  if  a 
lessee  re-demise  to  the  lessor,  for  his  whole  term,  re- 
[*301]  serving  a  rent,  that  *  amounts  to  a  surrender  (c^).  A 
notice  to  quit  at  du  future  day  cannot  operate  as  a  sur- 
render (e),  but  a  written  request  by  the  tenant  to  his  land- 
lord to  relet  the  premises  to  some  other  person  may,  when 
acted  on,  amount  to  a  surrender  by  act  and  operation  of 
law  (/). 

Effect  of  an  invalid  new  lease.  —  No  implied  surrender  by 
the  grant  of  a  new  lease  will  take  effect,  if  the  new  lease  be 
absolutely  void  (^)  :  and  if  the  new  lease  do  not  pass  an  in- 
terest according  to  the  contract  and  intention  of  the  parties, 
an  acceptance  of  it  is  not  an  implied  surrender  of  the  old 
lease  (7i).  The  acceptance  of  a  voidable  lease  which  is  after- 
wards made  void  contrary  to  the  intention  of  the  parties, 
but  which  has  operated  to  pass  some  part  of  the  term  con- 

(y)  Gybson  v.  Searls,  Cro.  Jac.  84,  M.  &  W.  328 ;  BesscU  v.  Landsberg, 

170.  7  Q.  B.  038. 

(r)  Roe    d.    Earl    of    Berkeley   v.  (/)  Nickells  v.  Atlierstone,  13   Q. 

Archbp.  of  York,  0   Last,   80;   Doe  B.  944. 

d.  Earl  of  Egremont  r.  Courtenay,  11  (7)  Zoucli  d.  Abbott  v.  Parsons,  3 

Q.  B.  702.  Burr.  1807  ;  Wilson  v.  Scwell,  4  Burr. 

(a)  Ante,  276  (o).  1080;  1  W.  Blac.  017;  Roe  d.  Earl  of 

(l>)  I'orris  v.  Allin,  Cro.  Eliz.  173.  Berkeley  %•.  Arehbp.  of  York,  0  East, 

(c)  Com.  Dig.  tit.  Surrender   (II.)  80;  Davison  d.  Bromley  r.  Stanley, 

(L.  1).  4  Burr.  2210;  Doe  </.  Earl  of  Egre- 

(J)  Lloyil  !•.  Langford,  2  Mod.  175;  niont   r.    Courtenay,   11    Q.    B.    702; 

Smith  V.  Mapleback,  1  T.  R.  441.  Smitli  L.  &  T.  307  (2nd  ed.);  3  Brest. 

(c)  Doe   d.    Murrell  i\  Milward,  3  Conv.  104,  1(55. 

(/()  Com.  Dig.  tit.  Estates  (G.  13). 

484 


Ch.  VIII.  S.  3.]     SURRENDER    (bY   OPERATION   OF   LAW).      *302 

tracted  for,  is  not  a  surrender  of  a  valid  former  lease  incon- 
sistent tlierewitli :  therefore  when  a  tenant  for  life,  wit li  a 
power  of  leasing,  made  a  lease  of  part  of  some  land,  which 
was  not  a  good  execution  of  the  power,  in  consideration  of 
tlie  surrender  of  two  prior  leases  of  the  whole  of  the  land, 
and  in  order  to  effectuate  an  agreement  entered  into  be- 
tween the  lessee  and  another  person  for  the  sale  of  the 
remaining  part  of  the  land,  which  the  lease  recited  that  it 
was  intended  to  lease  to  the  vendee  by  indenture  of  even 
date,  and  which  was  done  ;  it  was  held,  after  the  death  of 
the  tenant  for  life,  that  this  new  lease  as  to  the  premises 
thereby  demised  did  not  operate  as  a  surrender  of  the  two 
prior  leases  (i).  So  where  a  tenant  for  life,  with  power  of 
leasing,  granted  a  lease  "in  consideration  of  the  surrender 
up"  of  a  former  lease,  "which  surrender  is  hereby  made  and 
accepted,"  it  was  held,  that  the  new  lease  not  being  a  good 
execution  of  the  power,  and  therefore  voidable  by  the  re- 
mainderman, did  not  operate  as  a  surrender  of  the  prior 
lease  (A;).  Where  a  voidable  bishop's  lease,  which  had  been 
granted  in  consideration  of  a  surrender  by  deed  executed  a 
few  days  before  of  a  prior  lease,  was  avoided '  b}'  the  suc- 
cessor ;  it  was  held,  that  the  first  lease  was  not  revived  by 
such  avoidance  (^). 

Effect  of  new  lease  of  part  only.  —  If  a  lessee  for  years 
accept  a  new  lease  by  indenture  of  part  of  the  lands,  it  is  a 
surrender  for  that  part  only,  and  not  for  the  whole  (?») ; 
and  though  a  contract  for  years  cannot  be  so  divided,  as  to 
be  avoided  for  part  of  the  years  and  to  subsist  for  the 
residue,  either  *  by  act  of  the  party  or  by  act  in  law ;  [*302] 
yet  the  land  itself  may  be  divided,  and  the  tenant 
may  surrender  one  or  two  acres,  either  expressly  or  by  act 
of  law,  and  the  lease  for  the  residue  will  stand  good  and 


(i)  Doe   d.  Biddulph  v.  Poole,   11  Doe  d.  Earl  of  Egremont  v.  Forwood, 

Q.  B.  713;  Roe  d.  Earl  of  Berkeley  3  Q.  B.  ()27. 

V.    Archbp.    of   York,  6    East,    86 ;  2  (/)  Doe  d.  :Murray  v.  Bridges,  1  B. 

Smith  L.  &  T.  713  (6th  ed.)  ;  Smith  &  Ad.  817. 

L.  &  T.  308  (2nd  ed.).  (m)  Earl  of  Carnarvon  v.  Villol.ois, 

(k)  Doe    d.  Earl    of   Egremont   v.  13  M.  &  W.  342 ;  Morrison  v.  Cliad- 

Courtenay,  11  Q.  B.  702  ^overruling  wick,  7  C.  B.  266;  6  D.  &  L.  567. 

485 


*302  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  3. 

untouched  (7i).  If  there  be  two  lessees  for  life,  or  years, 
and  one  of  them  take  a  new  lease  for  years,  it  is  a  surrender 
of  the  moiety  (o). 

By  estoppel.  —  The  term  "surrender  by  operation  of  law" 
is  properly  applied  to  cases  where  the  owner  of  a  particular 
estate  has  been  party  to  some  act  having  some  'other  object 
than  that  of  a  surrender,  but  which  object  cannot  be  effected 
whilst  the  particular  estate  continues,  and  the  validity  of 
which  act  he  is  by  law  estopped  from  disputing  (j»).  Such 
surrender  is  the  act  of  the  law,  and  takes  place  indepen- 
dently of,  and  even  in  spite  of,  the  intention  of  the  parties  (5^). 
It  is  presumed  to  have  preceded  the  act  to  which  the  tenant 
is  party  (r).  The  acts  in  pais,  which  bind  parties  by  way  of 
estoppel,  are  acts  of  notoriety,  not  less  formal  and  solemn 
than  the  execution  of  a  deed,  as,  for  instance,  livery,  entry, 
acceptance  of  an  estate,  and  the  like  (s). 

By  consent  and  acceptance  of  possession.  —  A  tenancy  from 
year  to  year  cannot  be  determined  unless  there  be  either  a 
legal  notice  to  quit  or  a  surrender  (^)  :  and  therefore  a  ten- 
ancy from  year  to  year,  created  hy  parol,  is  not  determined 
by  a  parol  licence  from  the  landlord  to  the  tenant  to  quit  in 
the  middle  of  a  quarter,  and  the  tenant's  quitting  the  prem- 
ises accordingly  (u)  ;  but  where  upon  a  tenancy  from  3'ear 
to  year,  determinable  at  a  quarter's  notice,  the  lessor  licensed 
the  tenant  to  quit  in  the  middle  of  a  quarter,  and  the  tenant 
accordingly  quitted,  and  the  lessor  accepted  possession;  it 
was  held  to  be  a  surrender  by  operation  of  law,  destroying 
the  right  to  rent  for  the  whole  or  any  part  of  the  current 
quarter  (x). 

By  mutual  agreement.  —  An  agreement  by  landlord  and 
tenant  that  the  term  shall  be  put  an  end  to,  acted  upon  by 

(n)   Bac.  Ahr.   tit.    Loa.scs    (S.  .^).  (0  Doe  f/.  Read  i;.  Kiilout,  6  Taunt. 

See  Jones  v.  Bridgcman,  39  L.  T.  500.  519. 

(o)  Shep.  Toucli.  302.  (n)  Mollctt  r.  Brayne,  2  Camp.  10; 

(;0  Lyon  v.  Reed,  13  M.  &  W.  285;  Tlioinpson  (•.  Wilson,  2  Stark.  \i.  379. 

Besseil  v.   Land.sberg,   7    Q.  B.  038;  (.<)  Grimman  r.   Leg^e,  8  B.  &  C. 

Com.  Dig.  tit.  Surrender  (I.).  324;    Brown  r.  Burtinsiiaw,  7    D.    & 

(fy)  Lyon  i-.  Heed,  13  M.  &  W.  285.  li.  (i03 ;  Furnivail  v.  (irove,  8  C.  B., 

(r)  9  C.  B.  0,34,  note.  N.  S.  496;  30  L.  J.,  C.  T.  3;   Bac. 

(.f)  Id.;  Nickells  i;.  Atlierstone,  10  Abr.  tit.  Leases  (S.  2). 
Q.  B.  944. 

48G 


Ch.  VIII.  S.  3.]     SUKRENDER    (BY   OPERATION    OF   LAW").      *303 

the  tenant's  quitting  the  premises,  and  the  huidloid  ])y  some 
unequivocal  act  taking  possession,  amounts  to  a  sunendei' 
by  operation  of  law  (y).  Where,  therefore,  a  tenant  left  tlie 
key  at  the  counting-house  of  the  landlord,  and  the  latter, 
though  he  at  fii'st  refused  to  accept  it,  afterwards  put  up  a 
board  to  let  the  premises,  and  used  the  key  to  show  them, 
and  painted  out  the  tenant's  name  from  the  front,  this  was 
held  sufficient  evidence  of  a  surrender  by  operation  of 
law  (s).  In  Reeve  v.  Bird,  the  tenant  of  a  house,  three  cot- 
tages, and  a  stable  and  yard,  let  at  an  entire  rent  for 
a  term,  before  the  *  expiration  of  it,  assigned  all  the  [*303] 
premises,  the  house  and  cottages  being  in  the  posses- 
sion of  subtenants  ;  the  landlord  accepted  a  sum  of  money 
as  rent  up  to  the  day  of  the  assignment,  which  was  in  the 
middle  of  a  quarter ;  the  assignee  took  possession  of  the 
stable  and  yard  only ;  the  occupiers  of  the  cottages  having 
left  them  after  the  assignment,  and  before  the  expiration  of 
the  term,  the  landlord  relet  them ;  the  tenant  paid  no  rent 
after  the  assignment,  but  the  landlord  received  rent  from 
the  subtenants,  and  before  the  expiration  of  the  term  he 
advertised  the  whole  of  the  premises  to  be  let  or  sold ;  it 
was  held  that  this  was  a  surrender  by  operation  of  law  of  all 
the  premises  («).  But  where  a  tenant  from  year  to  year  by 
a  Lady-day  holding,  orally  agreed  with  his  landlord's  agent 
to  quit  at  the  ensuing  Lady-day,  which  was  within  half  a 
year ;  and  the  premises  were  relet  by  auction,  at  which  the 
tenant  attended  and  bid,  but  the  new  tenant  was  not  let 
into  possession ;  it  was  held  that  the  tenancy  was  not  de- 
termined, there  not  having  been  a  surrender  by  operation  of 
law  (6). 

Acceptance  of  key.  —  If  the  landlord  of  a  house  in  the 
middle  of  a  quarter  accept  the  key  from  his  tenant  under  a 
parol  agreement  that  upon  his  then  giving  up  the  possession 
the  rent  shall  cease,  and  he  never  afterwards  occupy  the 
premises,  he  cannot  recover  in  an  action  for  the  use  and 

(y)  Phene  v.  Popplewell,  12  C.  B.,  (h)  Doe  d.  Hiullcstone  v.  Johnstone, 

N.  S.  334 ;  31  L.  J.,  C.  P.  235.  1    M'Clel.    &    Y.    141 ;    Jolinstone    v. 

(z)  Id.  Hudlestone,  4  B.  &  C.  922;  Doe  d. 

(a)  Reeve  v.  Bird,  1  C,  M.  &  R.  31.  Murrell  v.  IMilward,  3  M.  &  W.  328. 

487 


*304  DETERMINATION   OF   TENANCY.        [Cii.  VIII.  S.  3. 

occupation  of  the  house  for  the  time  subsequent  to  his  ac- 
cepting the  key  (c).^  But  where  A.  was  tenant  to  B.  of 
rooms  for  a  term  of  years,  and  upon  the  bankruptcy  of  B., 
A.  sent  the  key  of  the  rooms  to  the  office  of  the  official 
assignee,  where  it  was  left  with  a  clerk,  who  was  told  that 
it  was  the  key  of  the  rooms  which  A.  had  Occupied  ;  and  A . 
immediately  quitted  possession,  but  no  further  communica- 
tion took  place :  this  was  held  not  to  amount  to  a  surrender 
by  act  and  operation  of  law  (cf).  Where  two  persons  de- 
mised a  house  by  lease  in  writing,  one  of  whom,  after  sign- 
ing the  lease,  never  further  interfered,  and  the  other,  before 
the  first  quarter's  rent  became  due,  accepted  the  key  from 
the  tenant's  wife ;  it  was  held,  that  there  was  a  sufficient 
surrender  by  the  tenant  which  bound  both  the  lessors,  the 
wife  of  the  tenant  acting  as  his  agent,  and  the  lessor,  who 
accepted  the  key,  as  the  agent  of  the  other  (e). 

Mere  acceptance  of  key  does  not  effect  surrender.  —  But  the 
mere  fact  that  the  landlord  has  received  the  key,  and  at- 
tempted unsuccessfully  to  relet  the  premises,  does  not  estop 
him  from  alleging  that  the  tenancy  still  subsists ;  and  if, 
afterwards,  before  the  expiration  of  the  term,  the  landlord 
relet,  the  surrender  by  operation  of  laAv  takes  effect  from 
such  reletting,  and  does  not  relate  back  to  the  receipt  of  the 
key.     So  it  was  held  by  the  Court  of  Appeal  in  Oastler  v. 

Henderson  (/). 
[*304]         *  Letting  to   another    person,   &c.  —  Where   a  lessee 

quitted  in  the  middle  of  his  term  apartments  which 
he  had  taken  for  a  year,  and  the  lessor  let  them  to  another 
person,  so  that  the  lessee  could  not  have  come  back  if  he  had 
chosen ;  it  was  held  that,  by  so  doing,  the  lessor  dispensed 
with  the  necessity  of  a  written  surrender  (.7).  Where  the 
owner  of  a  ferry  demised  it  for  a  year,  but  after  a  few  weeks 
tlie  lessee  finding  it  unprofitable,  agreed  instead  to  become 
servant  to  the  owner,  and  received  daily  wages  for  attending 

,  (c)  Wliitolioad  I'.  Clifford,  5  Taunt.  (>>)  Dodd  v.  Acklom,  0  M.  &  G.  672. 

618;    Furnivall   v.    Grove,   8    C.    B.,  ( /)  L.  U.,  2  Q.  B.  1).  575;  46  L.  J., 

N.  S.  4{»0  ;  :;0  L.  J.,  C.  I'.  ;?.  Q.  B.  007 ;  37  L.  T.  22. 

(rf)  Cannaii  v.  Hartley,  U  C.  B.  034.  (7)  Walls  v.  Atcheson,  3  Bing.  462. 

^  Delivery  of  key.  — See  aulc,  note,  "  Surrender  (by  operation  of  law)." 

488 


Cii.  VIII.  S.  ;3.]    SURRENDER    (UY    OPERATION   OF   LAW).        *304 

to  the  ferry  for  him,  it  was  held  to  be  a  surrender  by  act  and 
operation  of  law  (A).  AVhere  a  tenant  from  year  to  year 
agreed  to  buy  the  freehold  of  the  land,  it  was  held,  that  the 
agreement,  not  being  absolute,  but  conditional  on  a  good  title 
being  found,  did  not  operate  as  a  surrender  of  the  tenancy 
by  operation  of  law  (<). 

Acceptance  of  another  tenant.  —  The  effect  of  a  Surrender 
by  operation  of  law  has  been  extended  to  cases  in  which  a 
third  person  has,  with  the  consent  of  both  landlord  and 
tenant,  taken  possession  of  the  demised  premises  and  been 
treated  by  the  landlord  as  his  tenant  {k'). 

A  tenancy  from  year  to  year  cannot  be  surrendered  by  the 
mere  agreement  of  the  landlord  to  accept  a  third  person  in 
the  place  of  his  tenant,  unless  such  agreement  be  in  writing, 
or  the  third  person  actually  taken  possession  (/) :  but  an  oral 
agreement  between  a  landlord  and  tenant  from  year  to  year, 
that  another  tenant  shall  be  substituted  in  his  place,  who  is 
accordingly  substituted,  and  thereupon  takes  possession,  is  a 
sufficient  surrender  to  determine  the  former  tenancy  (w).^ 
Where  a  landlord  grants  a  new  lease  to  a  stranger  with  the 
assent  of  the  tenant  under  an  existing  lease,  and  the  latter 
gives  up  his  own  possession,  that  is  a  surrender  by  operation 
of  law  (w)i  fii^f^  there  is  a  similar  surrender  if  where  A.  being 
tenant  from  year  to  year  sublet  to  B.,  and  the  original  land- 
lord, with  the  assent  of  A.  accept  B.  as  his  tenant  (o).    Where 

(/()  Peter  v.  Kendal,  0  B.  &  C.  703.  882 ;    Lawrence  r.  Faux,  2  F.  &   F. 

0)  Doe  d.  Gray  v.   Stanion,  1  M.  435 ;  Hobson  v.  Cowlev,  26  L.  J.,  Ex. 

&  W.  695 ;  Tarte  v.  Darby,  15  M.  &  209. 

W.  601.  (,i)  Davison  V.  Gent,  1  H.  &  N.  744; 

(k)  Thomas  v.   Cook,  2  B.  &  Ad.  26  L.  J.,  Ex.  122 ;  Lawrence  v.  Faux, 

119.     See  Smith  L.  &  T.  308,  where  2  F.  &  F.  435. 

this  and  similar  cases   are  ably  dis-  (o)  Thomas    v.  Cook,  2    B.  &  Ad. 

cussed,  and  it  is  remarked    that  the  119;  Johnstone    v.  Hudlestone,  4  B. 

whole  doctrine  is  an  encroachment  on  &  C.   922  ;    Smith    L.  &   T.    308-310 

the  Statute  of  Frauds.  (2nd  ed.)  ;  Wilson  v.  Sewell,  4  Burr. 

(/)  Taylor  v.  Chapman,  Peake  Ad.  1975;  Hall  v.  Burgess,  5  B.  &  C.  332 ; 

Cas.  19.  Walls    v.     Atcheson,    3    Bing.    462; 

()h)  Stone  J'.  Whiting,  2  Stark.  2.35;  Woodcock    v.    Nuth,    8    Bing.    170; 

Nickells  r.  Atherstone,  10  Q.  B.  944 ;  Lawrence  v.  Faux,  2  F.  &  F.  435. 
Walker    v.   Richardson,  2    M.  &  W. 

^  Substitution  of  new  tenant.  —  See  ante,  note,  "  Surrender  (by  opera- 
tion of  law)." 

489 


*305  DETERMINATION   OF   TENANCY.        [Ch.  VIII.  S.  3. 

two  persons  being  tenants  from  year  to  year  of  two  closes 
under  different  lessors  agreed  verbally  to  exchange  tliem, 
wliich  they  did,  and  then  the  arrangement  was  mentioned  to 

a  person  who  was  steward  of  both  the  lessors,  and  who 
[*305]   *  expressed  his  assent  to  it,  it  was  held  that  this  was 

evidence  of  new  demises,  and  of  a  surrender  by  opera- 
tion of  law  of  the  previous  interests  of  the  tenants  (jt>).  A 
tenant  from  j-ear  to  year  died,  his  widow  remained  in  posses- 
sion, and  continued  paying  the  rent  to  the  landlord,  with  the 
knowledge  of  a  person  who,  above  a  year  after,  took  out 
administration ;  the  widow  still  continued  in  possession  for  a 
year,  paying  the  rent  as  before ;  it  was  held,  that  this  did  not 
amount  to  a  surrender  by  operation  of  law  of  the  tenancy 
from  year  to  year  (^).  A  tenant  quitted  possession  of  prem- 
ises, and,  on  being  applied  to  for  rent,  stated  in  a  letter  to  his 
landlord,  that  he  hoj)ed  his  landlord  would  be  able  to  let 
them  to  some  other  person  on  better  terms;  this  the  land- 
lord did  a  few  days  after,  and  the  new  tenant  entered  and 
paid  rent :  it  was  held,  that  these  facts  amounted  to  a  sur- 
render, but  the  court  declined  to  consider  the  effect  of  the 
letter  as  evidence  of  a  surrender  b}'  a  note  in  writing  within 
the  Statute  of  Frauds  (r).  Where  W.  and  H.,  Avho  were 
partners,  by  agreement,  in  March,  1827,  became  tenants  to 
the  plaintiff,  and  at  Midsummer,  1828,  W.  retired  from  the 
partnership,  and  in  January,  1829,  H.  entered  into  partner- 
ship with  S. ;  and  the  jjlaintiff  gave  receipts  for  rent  as 
received  from  H.  after  W.  retired,  and  as  received  from  H. 
and  S.  after  S.  became  a  partner ;  and  also  gave  H.  a  letter 
to  his  attorney,  signifying  that  a  lease  might  be  made  to  H. 
and  S.,  but  which  was  kept  by  II.  and  not  acted  upon,  and 
no  lease  was  prepared;  it  was  held,  tliat  W.  remained  liable 
for  the  rent  accruing  at  the  time  of  11.  and  S.  (,s').  Where 
premises  had  been  let  to  B.  for  a  term  determinable  by  a 
notice  to  quit,  and,  pending  the  term.  A.,  the  landlord,  agreed 

(p)  Bees  V.  Williams,  2  C,  M.  &  (?)  Nickclls  v.  Atherstonc,   10   Q. 

R.  581  ;  Lyon   i;.  Rcc'<l,  l.'J  M.  &  W.  B.  <.)44  ;  Smith  L.  &  T.  -.Wl  (2ml  od.). 

285;  Smith  L.  &T.;]10  (2iul  ed.).  (.s)  Graliam    i-.    Wicholo,   1    Cr.    & 

(q)  Doe  d.  Hull  V.  Wood,  14  M.  &  M.  188;  Woodcock  v.  Nuth,  8  Bing. 

W.  G82.  170. 

490 


Cii.  VIII.  S.  .0.]      SUBKENDER    (BY   OPERATION   OF).  *306 

to  let  C.  stand  in  B.'s  place,  and  C.  offered  to  pay  rent ;  it 
was  held,  in  an  action  for  use  and  occupation  against  C,  that 
he  could  not  set  up  as  a  defence  that  B.'s  term  had  not  been 
determined  either  by  a  notice  to  quit,  or  a  surrender  in  writ- 
ing (^).  Where  a  sole  tenant  from  year  to  year,  before  the 
termination  of  bis  tenancy,  entered  into  an  agreement  with 
his  landlord  for  a  lease  to  be  granted  to  him  and  another 
jointly,  and  both  entered  upon  and  occupied  the  premises 
jointl}";  it  was  held,  that  the  first  tenancy  was  determined 
though  the  lease  was  never  executed  pursuant  to  the  agree- 
ment (w). 

(c)   Operation  of  Surrender. 

Surrender  ■will  not  prejudice  previous  sub-leases.  —  The  sur- 
render of  a  lease  will  not  affect  or  prejudice  a  sub-lease 
previously  granted  (a;),  unless  indeed  the  subtenant 
expressly  assents  *to  the  surrender  and  in  effect  [*30G] 
attorns  to  the  surrenderee;^  to  hold  of  him  on  new 
terms,  or  as  his  agent  or  servant  (y).  Where  a  lessee  mort- 
gaged tenant's  fixtures,  and  afterwards  surrendered  his  lease 
to  the  lessor,  who  granted  a  fresh  lease  to  a  third  party ;  it 
was  held,  that  the  mortgagee  had  a  right  to  enter  and  sever 

(t)  Phipps  V.  Sculthorpe,  1  B.  &  A.  M.  &  S.  146 ;  Pleasant  d.  Hayton  v. 

50 ;  but  see  Hyde  r.  Moakes,  5  C.  &  Benson,    14   East,  232  ;    Torriano    v. 

P.  42.  Young,  6  C.  &  P.  8 ;  Piggott  ;,'.  Strat- 

(!/)  Hamerton  v.  Sieed,  3  B.  &  C.  ton,   1  De   G.,  F.  &  J.  33;  29  L.  J., 

478.  Ch.  1,  7. 

(x)  Mellor   v.  Watkins,   L.   R.,   9  {y)  Lambert   v.  M'Donnell,  15  Ir. 

Q.  B.  400 ;  Doe  d.  Beaden  ■;.  Pyke,  5  Com.  L.  R.  136. 

^Effect  of  surrender  upon  sublease.  —  A  lessee  cannot  surrender  to 
prejudice  of  sub-lessee.  McKenzie  v.  Lexington,  4  Dana  (Ky.)  129.  Sub- 
lessee may  sue  lessor  if  he  disturb  nim.  Eten  v.  Luyster,  60  X.  Y.  252.  If 
lessor  make  new  lease,  and  sub-lessee  attorn,  he  will  lose  remedy  against 
lessor.     Ritzier  i-.  Raether,  10  Daly  (X.  Y.)  286. 

Such  surrender  operates,  in  most  cases,  as  a  quasi  assignment,  lessor  becom- 
ing landlord  to  sub-lessee.  Eten  v.  Luyster,  60  X.  Y.  252,  259 ;  Ritzier  v. 
Raether,  10  Daly,  286,  289;  Benson  v.  BoUes,  8  Wend.  (X.  Y.)  175,  180. 

In  McKenzie  v.  Lexington,  4  Dana  (Ky.)  129,  130,  however,  the  lessee, 
having  sublet  without  rent  ar.d  surrendered,  was  held  himself  liable  for  the 
rent.     See  post,  sec.  4,  notes. 

A  lessee  cannot  surrender  to  prejudice  of  lien  men  or  others  who  have 
acquired  interests.     Hagan  v.  Gaskill,  42  X.  J.  Eq.  215. 

491 


*306  DETERMINATION    OF   TENANCY.  [Ch.  VIII.  S.  3. 

the  fixtures,  as  it  was  not  competent  to  the  tenant  to  defeat 
his  grant  by  the  subsequent  voluntary  act  of  surrender  (z). 

Operation  on  rents  reserved  in  sub-leases.  —  Formerly  if  a 
lessee  for  years,  who  had  sublet  for  a  less  term,  surrendered 
his  term  to  the  lessor,  it  followed  that  the  reversion  on  the 
sub-lease  being  gone,  the  rent  and  the  covenants  were  gone 
also  (a).  But  the  Act  4  Geo.  2,  c.  28,  s.  6,  enabled  a  lessee 
to  surrender  his  lease  for  the  purpose  of  taking  a  new  one 
without  a  surrender  of  a  sub- lease,  and  saved  to  the  lessee  all 
the  same  remedies  against  the  sublessee  for  rents,  covenants 
and  duties,  and  to  the  original  lessor  the  same  remedies  for 
rents  and  duties  reserved  by  the  new  lease,  so  far  as  they 
exceed  not  the  rents  and  duties  reserved  in  the  former  one, 
out  of  which  the  sub-lease  was  derived,  as  if  the  original  lease 
were  still  kept  on  foot(^0'  And  by  8  and  9  Vict.  c.  106,  s.  9, 
if  a  reversion  expectant  on  a  lease  is  surrendered,  the  estate 
which  confers,  as  against  the  tenant,  the  next  vested  right 
to  the  tenements,  shall  be  deemed  the  reversion  for  the 
purpose  of  preserving  the  incidents  to  and  obligations  on 
the  reversion  (c) ;  so  that,  b}'  the  effect  of  this  statute,  the 
surrenderee  becomes  assignee  of  the  reversion  expectant  on 
the  sub-lease. 

Effect  on  rent  previously  due.  —  Where  a  lease  containing  a 
personal  covenant  for  the  payment  of  rent  is  surrendered, 
the  personal  covenant  is  independent  of  the  estate  in  the 
property,  and  as  to  rent  previously  due  is  not  affected  by  the 
surrender,  but  the  lessor  remains  a  specialty  creditor  for 
the  rent  which  accrued  due  before  the  surrender  ((^). 

Accruing  rent. —  Before  the  Apportionment  Act,  1870(e), 
rent  reserved  l)y  the  lease  at  fixed  periods,  (jiiarterly  or 
otherwise,  which  was  accruing  when  a  surrender  was  made, 

(z)  Loiulon  and  Westminstor  Loan  Palk  v.  Marehctti,   1   B.  &  Ad.  716. 

and  Discount  C  Limited  v.  Drake,  0  See  this  section  at  leuRtli,  post,  Cliap. 

C.  B.  N.  S.  798  ;  28  L.  J.,  C.  P.  2!)7 ;  IX.,  Sect.  4. 

and  see  Saint  v.  Pilley,  L.  R.,  10  Ex.  (r)  Smith  L.  &  T.  316.     See  28(5, 

137  ;  44  L.  J.,  Ex.  33.  post. 

(<i)  Threr   i;.    Barton,    Moore,    94;  (d)  Att.-Gcn.  v.  Cox,  3  II.  L.  Cas. 

Wel.h  V.  Kussell,  3  T.  H.  .393;  Burton  240 ;  Smitli  L.  &  T.  317  (2nd  ed.). 

V.  Barclay,  7  Binfj.  7.'')0.  (e)  Post,  Chap.  X.,  Sect.  G  (b). 

(Jj)  Snuth    L.    &   T.  317;    Doe    d. 

492 


Ch.  VIII.  S,  3.]     SURRENDER    (bY   AND   TO   WHOM   MADE).    *307 

sank  and  was  entirely  lost  (/) ;  but  that  act,  sect.  3,  by  the 
words  "  re-entry,  death  or  otherwise,"  seems  to  include  the 
case  of  a  surrender. 

*  Surrender  after  assignment  of  future  rent.  —  In  the  [*307 J 
peculiar  case  of  Southwell  v.  Scotter  (r/),  the  plain- 
tiff,  having-  let  to  the  defendant,  assigned  the  reversion,  but 
agreed  with  the  assignee  that  they  should  continue  to  receive 
rent  from  the  defendant,  to  whom  they  gave  notice  of  the 
agreement.  The  defendant  afterwards'  surrendered  to  the 
assignee  of  the  reversion,  and  it  was  held  that  such  a  sur- 
render was  valid,  and  that  the  rent  accruing  due  after  it 
could  not  be  recovered  by  the  plaintiff  from  the  defendant ; 
but  it  seems  that  the  plaintiff  would  have  had  a  remedy 
against  the  assignee,  though  it  was  not  necessary  to  decide 
that  point. 

(d)  Bi/  and  to  tvJiom  Surrender  made. 

Surrenderee  must  be  the  immediate  reversioner.  —  Those 
persons  who  are  disabled  to  grant  are  unable  to  surrender ; 
and  such  persons  as  are  disabled  to  take  by  a  grant  are 
unable  to  take  by  a  surrender  (7i).  Moreover,  the  surren- 
deree must  be  the  immediate  reversioner  (/)  ;  if  therefore  A. 
let  to  B.  for  ten  years,  who  lets  to  C.  for  five  years,  C.  can- 
not surrender  to  A.  by  reason  of  the  intermediate  interest  of 
B. ;  but  in  such  case  B.  may  surrender  to  A.,  and  afterwards 
C.  likewise,  because  then  his  lease  for  five  years  is  become 
immediate  to  the  reversion  of  A.  (^).  If  a  husband  have  a 
lease  or  estate  for  years  in  right  of  his  wife,  he  alone,  or  he 
and  his  wife  together,  may  surrender  it ;  but  if  the  husband 
have  an  estate  for  life  in  right  of  his  wife,  who  is  tenant  in 
dower  or  otherwise,  and  he  alone,  or  he  and  she  together, 
surrender  it,  the  surrender  is  good  only  during  the  life  of 

(/)  Grimman  v.  Legge,  8  B.  &  C.  could  be  a  valid   assignment  of  the 

324 ;  Slack  v.  Sharp,  8  A.  &  E.  360  ;  rent   to  the  plaintiff   as   a  chose   in 

Dodd  V.  Acklom,  0  M.  &  G.  673  ;  Doe  action,  see  252,  ante, 

d.  Philip  V.  Benjamin,  9  A.  &  E.  644;  (li)  Shep.  Touch.  303. 

Furnivall  v.    Grove,  8   C.  B.,  N.  S.  (/)  Edwards  v.  Wickwar,  L.  R.,  1 

496 ;  30  L.  J.,  C.  P.  3.  Eq.  68,  403. 

(<7)  Southwell  V.  Scotter,  49  L.  J.,  (A)  Bac.  Abr.  tit.  Leases  (S.  2). 
Ex.  356.     As  to  whether  there  was  or 

493 


*308  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  3. 

the  husband,  unless  the  deed  be  acknowledged  by  the  wife 
pursuant  to  the  Act  for  the  Abolition  of  Fines  and  Recov- 
eries. 

Joint  tenants,  executors,  &c.  —  One  joint  tenant  cannot  sur- 
render to  another  joint  tenant,  but  he  may  grant,  release  or 
assign  to  him.  One  of  two  or  more  executors  may  also  sur- 
render an  estate  or  lease  for  years,  which  the  executors  have 
in  the  right  of  their  testator  (?).  Where  the  lessee  of  prem- 
ises, under  a  covenant  of  re-entry  if  the  rent  should  be  in 
arrear  twenty-eight  days,  died  in  bad  circumstances,  and  his 
brother  administered  de  son  tort,  and  then  after  having 
agreed  with  the  landlord  to  give  him  possession  and  suffer 
the  lease  to  be  cancelled  on  his  abandoning  the  rent,  which 
was  twenty-eight  days  in  arrear,  took  out  letters  of  adminis- . 
tration ;  it  was  held,  that  the  agreement  of  the  brother  as 
administrator  de  son  tort  did  not  conclude  him  as  rightful 
administrator,  nor  give  a  right  of  possession  to  the  landlord 
who  had  entered  under  the  agreement,  but  who  had 
[*308]  not  made  any  formal  demand  of  the  rent,  *  nor  taken 
a  regular  surrender  of  the  lease  (w).  Where  a  lessee 
who  had  jjaid  rent  sometimes  to  a  trustee  and  sometimes  to 
a  cestui  que  trust,  gave  up  possession  on  the  last  day  of  the 
term,  but  before  it  was  ended,  to  the  person  who  had  been 
trustee,  and  not  to  the  party  then  having  the  legal  title  ;  it 
was  held,  that  as  the  act  was  equivocal,  it  did  not  amount  to 
either  a  surrender  or  to  a  forfeiture  (w). 

Infants.  —  An  infant  may  make  a  surrender  in  law  by  the 
acceptance  of  a  new  lease,  if  such  new  lease  increase  his 
term  or  decrease  his  rent ;  but  a  surrender  by  an  infant 
lessee  by  deed  is  absolutely  void. 

Sequestrators.  —  A  surrender  of  a  lease  cannot  be  made  to 
sequestratoi's ;  it  must  be  to  the  lessor,  or  to  a  party  legally 
entith'd  under  hiiu  (o). 

What  estate  surrender  may  operate  on.  —  A  lessee   may  sur^^ 

(/)  Shop.  Touch.  303.        *  (»)  Ackland  v.  Lutley,  9  A.  &  K. 

(m)  Doe  d.  Hornby  v.  Glenn,  1  A.       87!>. 
&  E.  49.  (o)  Cornish   v.  Scarcll,  8  B.  &  C. 

471. 
494 


Cn.  VIII.  S.  4.]  MERGER.  *308 

render  to  him  who  has  the  immediate  reversion,  either  in  fee 
or  for  any  less  estate  (jo). 


Sect.  4.  —  Merger. 

What  amounts  to  a  merger  of  a  term.  —  A  lease  for  years 
may  be  determined  by  merger ;  that  is,  when  there  is  a  union 
of  the  term  with  the  immediate  reversion,  both  being  vested 
at  the  same  time  in  one  person  in  the  same  right.  In  such 
case  the  reversion  merges  or  drowns  the  term,  because  they 
are  inconsistent  and  incompatible  (g).  Nemo  potest  esse  te- 
nens  et  dojuinus.  A  person  cannot  be,  at  the  same  time,  both 
landlord  and  tenant  of  the  same  premises. ^  It  may  be  laid 
down  as  a  general  rule,  that  whenever  the  particular  estate 
and  that  immediately  in  reversion  are  both  legal  or  both 
equitable,  and  by  any  act  or  event  subsequent  to  the  creation 
of  the  particular  estate  become  for  the  first  time  vested  in 
one  person  in  the  same  right,  their  separate  existence  will 
cease  and  a  merger  will  take  place.  But  where  a  tenant  for 
ninety-nine  years  purchases  the  reversion  in  fee,  and  takes  a 
conveyance  thereof  to  a  trustee  for  himself,  expressly  to  pre- 
vent a  merger,  the  term  becomes  one  in  gross,  and  no  merger 
takes  place  (r).  A  particular  estate  will  merge  in  a  rever- 
sion of  a  shorter  duration  than  itself  (s)  ;  as  if  one  be  lessee 
for  twenty  years,  and  the  reversion  expectant  thereon  be 
granted   to   another   for    one   year,   who   grants   it    to    the 

(p)  Bac.  Abr.  tit.  Leases  (S.  1,2);       Cro.  Jac.  019;  Burton  v.  Barclay,  7 
Challoner  v.  Davis,  1  Ld.  Raym.  402 ;       Bing.  745. 
Hughes  V.  Robotham,  Cro.  Eiiz.  302.  (r)  Belaney   v.   Belaney,  L.  R.,   2 

(«/)  Bac.  Abr.  tit.  Leases    (R.)  ;  2       Ch.  Ap.  138;  36  L.  J.,  Cii.  2G5. 
Blac.   Com.    177;    Salmon    v.    Swan,  (s)  Hughes  r.  Robotham,  Cro.  Eliz. 

302 ;  Poph.  30. 

1  Merger.  —  Ordinarily,  assignment  to  lessor  merges  term  in  reversion, 
Smiley  v.  Van  Winkle,  0  Cal.  (iO-j ;  Bartels  v.  Creditors,  11  La.  An.  4.'}3, 
unless  there  is  outstanding  sub-lease,  Bailey  v.  Richardson,  66  Cal.  410. 
Lessee's  sureties  remain  liable.'    Hamilton  v.  Read,  13  Daly  (N.  Y.)  430. 

The  term  is  not  merged  in  a  future  possible  fee  under  purchase  option  or 
covenant.  Bostwick  i;.  Frankfield,  74  N.  Y.  207;  Stewart  v.  L.  I.  R.  R.  Co., 
102  N.  Y.  001. 

495 


*309  DETEKMINATIOX    OF   TENANCY.         [Cii.  VIII.  S.  4. 

lessee,  it  -will  operate  as  a  merger  of  the  twenty 
[*309]   *  years'  term,  and  the  term  for  one  year  will  begin 

to  run  (^).  Where  a  lessee  made  a  sub-lease  for  all 
his  term,  except  a  few  days,  and  then  granted  the  sub-lease 
and  the  rent  thereby  reserved  to  his  lessor  for  the  term  men- 
tioned in  the  sub-lease  (but  not  for  the  few  days  so  excepted), 
it  was  held,  that  the  chattel  interest  was  not  merged  in  the 
fee  (ti').  Where  a  lessee  of  premises  for  a  term  of  twenty- 
one  years,  which  would  expire  at  Michaelmas,  1809,  in  De- 
cember, 1799,  took  a  further  lease  of  the  same  premises  for 
sixty  years,  to  commence  from  Michaelmas,  1809 ;  and  the 
lessor  died  in  December,  1800,  and  devised  the  premises  in 
question  to  A.,  the  lessee,  for  his  life,  who  by  lease  and 
release  m  1806  conveyed  his  life  estate  to  B.: — it  was  held 
that  A.'s  interest  in  the  lease  of  1799,  which  was  to  com- 
mence in  1809,  was  not  merged  in  his  estate  for  life  (x).  Sir 
Edward  Coke  lays  it  down  as  a  general  rule  that  a  person 
cannot  have  a  term  for  years  in  his  own  right,  and  a  freehold 
in  autre  droit,  but  that  his  own  term  shall  drown  in  the 
freehold ;  but  a  man  may  have  a  term  of  years  in  autre  droit, 
and  a  freehold  in  his  own  right  (^)  ;  and  it  seems  to  be 
agreed,  that  if  a  man,  being  possessed  of  a  term  of  years  in 
right  of  his  wife,  purchase  the  inheritance,  the  term  for 
years,  though  in  right  of  his  wife,  is  merged  and  extinct, 
because  the  purchase  was  the  express  act  of  the  husband, 
and  therefore  amounts  in  law  to  a  dis[)Osition  of  the  term, 
by  reason  of  the  merger  consequent  thereupon ;  but  a  bare 
intermarriagfe  of  a  woman  who  is  a  termor  with  the  rever- 
sioner  will  not  merge  the  term,  because  by  the  intermarriage 
the  term  is  cast  upon  the  husband  by  act  of  law,  without  any 
concurrence  or  immediate  act  done  by  him  to  obtain  the 
same ;  and  therefore  in  such  case  the  law  will  preserve  the 
term  in  the  same  plight  as  it  gave  it  to  the  husband,  till  lie 
by  some  express  act  destroys  it  or  gives  it  away  (z).    Where, 

(/)  Cruise,  T>\^.  00;  Burton  Conv.  (y)  Wol.b  v.  Rnssoll,  3  T.  K.  401, 

287  ;  Steplifiis  v.  Bridges,  0  MacM.  00.  Lord  Kinyon,  C.  J. 

(«)  Burton  v.  Barclay,  7  Bing.  745.  (r)  Co.    Lit.  3:58  b ;  Lady  Piatt  v. 

Ix)  Doe  (I.  Hawlings  v.  Walker,  5  Slcap,  Cro.  .lac.  275  j  Sug.  V.  &  P. 

B.  &C.  in.  017  (14tli  cd.). 

496 


Ch.  VIII.  S.  4.]  MERGER.  *310 

however,  the  liusband  himself  is  lessee  for  life,  and  inter- 
marries with  the  lessor,  this  merges  his  own  term,  because 
he  thereb}^  draws  to  himself  the  immediate  reversion,  in 
nature  of  a  purchase  l)y  his  own  voluntary  act,  and  so 
undermines  his  own  term ;  whereas  in  the  other  case,  the 
term  existing  in  the  woman  until  the  marriage,  is  not  thereby 
so  drawn  out  of  her  or  annexed  to  the  freehold  as  to  merge 
therein ;  because  that  attraction  which  is  only  by  act  of  law 
consequent  upon  the  marriage,  would,  by  merging  the  term, 
do  wrong*  to  a  married  woman,  and  so  take  the  term  out  of 
her,  though  the  husl)and  did  no  express  act  for  that  purpose, 
which  the  law  will  not  allow.  If  a  husband  is  possessed  of 
a  term  of  years,  and  the  owner  of  the  reversion  in  fee  de- 
vises it  to  the  wife,  who  has  issue,  the  husband,  who 
in  the  lifetime  *  of  the  wife  is  tenant  by  the  curtesy  [*310] 
initiate,  holds  the  two  estates  in  different  rights, 
without  having  acquired  the  freehold  by  his  own  act,  and 
consequently  there  is  no  merger  (a). 

Administrator.  —  C.  as  administrator  held  certain  land  for 
a  term  of  years,  which  he  demised  to  P.  for  a  shorter  term. 
P.  afterwards  assigned  this  land  to  C.  for  the  shorter  term. 
In  the  first  deed  C.  was  described  as  administrator,  but  not 
in  the  second.  It  was  held  that  there  had  been  no  merger  in 
equity  (6). 

Merger  of  reversion.  —  Formerly  if  a  tenant  for  a  term  of 
years  leased  for  a  less  term,  and  assigned  his  reversion,  and 
the  assignee  took  a  conveyance  of  the  fee,  by  which  his 
former  reversionary  interest  was  merged,  the  covenants  of 
the  sub-lease  incident  to  that  reversionary  interest  were 
thereby  extinguished  (c).  But  by  8  &  9  Vict.  c.  106,  s.  9, 
"when  the  reversion  expectant  on  the  lease,  made  either 
before  or  after  the  passing  of  this  Act,  of  any  tenements  or 
hereditaments  of  any  tenure,  shall,  after  the  1st  of  October, 
1845,  be  surrendered  or  merged,  the  estate,  which  shall  for 

(a)  Jones  i'.  Davies,  5  H.  &  N.  76G;  (c)  "Webb  v.  Russell,  3  T.  R.  393; 

7  Id.  507 ;  29  L.  J.,  Ex.  374.  Tborne  v.  Woolcombe,  3   B.  &  Ad. 

(6)    Chambers  v.  Kingham,  L.  R.,       586. 
10   Ch.   D.    743;  39   L.    T.    272,  per 
l'>y,  J. 

497 


*310  DETERMINATION    OF   TENANCY.         [Ch.VIII.  S.  5. 

the  time  beins:  confer  as  ao-ainst  the  tenant  under  the  same 
lease  the  next  vested  right  to  the  same  tenements  or  heredit- 
aments, shall,  to  the  extent  and  for  the  purpose  of  preserv- 
ing such  incidents  to  and  obligations  on  the  same  reversion 
as,  but  for  the  surrender  or  merger  thereof,  would  have  sub- 
sisted, be  deemed  the  reversion  expectant  on  the  same 
lease." 

Merger  after  Judicature  Acts.  —  By  the  Judicature  Act, 
1873,  s.  25,  subs.  (4),  "■  there  shall  not  after  the  commence- 
ment of  this  act  ((?),  be  any  merger  by  operation  of  law  only 
of  any  estate,  the  beneficial  interest  of  which  would  not  be 
deemed  to  be  merged  or  extinguished  in  equity." 


Sect.  5.  —  Forfeiture. 

(a)  Hoiv  incurred  generally. 

By  breach  of  covenant,  -where  condition  of  re-entry.  —  A 
lease  may  be  determined  by  entry  or  ejectment  for  a  forfeit- 
ure ^  incurred  either  by  (1)  breach  of  a  condition  therein  in 

(J)  I.e..  1st  of  November,  1875. 

1  Forfeiture  clauses.  —  (a)  The  law  construes  tliem  strictly.  Waterman 
V.  Clark,  58  Vt.  GUI;  Machias  Hotel  Co.  v.  Fisher,  50  Me.  321;  Jackson  v. 
Silvernail,  15  Johns.  (N.  Y.)  278,  and  Jackson  v.  Harrison,  17  Id.  (56  (cove- 
nant against  assigning  not  broken  by  subletting)  ;  Adams  v.  Goddard,  48  Me. 
212  (to  pay  e.xtra  insurance  not  broken  without  proof  that  extra  insurance  is 
due)  ;  Eberts  v.  Fisher,  54  Mich.  294  (to  pay  assessments  not  broken  until 
their  validity  settled). 

(/;)  Limitations.  —  If  provisions  are  limitations,  breach  of  them  ipso  facto 
terminates  title.  4  Kent's  Com.  sec.  127 ;  Wilde,  J.,  in  Fifty  Associates  r. 
Howland,  11  Met.  (Mass.)  0!). 

((•)  Rc-evtrij  c/au.ses.  —  If  provisions  (not  limitations)  are  joined  to  re-entry 
clauses,  breacli  of  them  works  no  forfeiture,  utiles.^  lessor  or  his  rei)resenta- 
tive  re-enters.  Strangers  cannot  enforce  tiiem.  Porter  r.  Merrill,  124  Mass. 
6'U,  541 ;  Shumway  v.  Collins,  (i  Gray  (Mass.)  227,  230;  Welch  v.  Silliman,  2 
Hill  (N.  Y.)  491,  495. 

The  lessor  or  his  rejtresentatives  n«iy  enter,  Fifty  Associates  v.  IIow]an<l, 
11  Met.  (Mass.)  99;  and  may  bring  ejectment.  Doe  </.  Mayor,  &c.,  of  St.  John 
V.  Koe,  24  N.  B.  ;557 ;  Jackson  r.  Topijing,  1  Wend.  (N.  Y.)  388. 

»((!)  Dimand  bffore  rtitn/. — They  cannot  for  non-payment  of  rent  witlinut 
previous  demand.  Tiiis  must  be  on  pay-day,  just  before  sunset.  If  no  other 
l)lace  is  named,  it  must  be  at  mansion-house  or  otiier  most  notorious  place  on 
premises  (thougli  no  j)tison  be  tliere).     .lolmsion  v.  Hargrove,  81    Va.   118; 

408 


Cji.  VIII.  S.  5]  FORFEITURE.  *311 

the  lease ;  or  (2)  for  a  breach  of  any  covenant,  in  case  (and 
in  case  only  (e))  the  lease  contain  a  condition  or  proviso  for 
re-entry  for  a.  breach  of  such  covenant  (/).  The 
same  rule  applies  to  tlie  breach  of  the  terms  of  *  an  [*311] 
agreement  for  a  lease  for  years,  whether  a  person 
has  entered  and  holds  as  tenant  from  year  to  year  (_(/),  or  is 
considered  as  actual  lessee  (^Ii}.  In  that  case  also,  if  the 
agreement  stipulate  for  a  proviso  for  re-entry,  ejectment  can 
be  brought  at  once.  The  lessor,  having  the  jus  disponendi, 
may  annex  whatever  conditions  he  pleases  to  his  grant,  pro- 
vided they  be  not  illegal  or  repugnant  to  the  grant  itself ; 
and  upon  the  breach  of  any  of  these  conditions  may,  subject 
to  special  statutory  provisions  for  "  relief  against  forfeiture," 
avoid  the  lease  (/). 

By  -what  acts  a  forfeiture  may  be  incurred.  —  Besides  incur- 
ring a  forfeiture  by  the  breach  of  express  conditions,  which 
will  be  hereafter  considered,  a  lessee  may  incur  a  forfeiture 
for  breach  of  implied  conditions,  either  by  matter  of  record, 
or  by  act  in  pais :  1,  by  matter  of  record,  where  he  sues  out 
a  writ,  or  resorts  to  a  remedy  which  claims  or  supposes  a 
right  to  the  freehold,  or  where,  in  an  action  by  his  lessor 
grounded  upon  the  lease,  he  resists  the  demand  under  the 

(e)  It  is  of  importance  that  a  lease  Phillips,  2  Bing.  13 ;  Doe  d.  Darke  v. 

for  years  sliould  contain  a  proviso  for  Bovvditch,  8  Q.  B.  978. 
re-entry  for  non-paymeijt  of  rent  at  (r/)  Doe  d.  Tliomson  v.  Amey,  12 

any  rate,  as  otlierwise  the  lessor  may  A.  &  E.  476 ;  Thomas  i\  Paclcer,  1  H. 

find    himself    saddled  with  an    impe-  «&  N.  669 ;    Ilayne  r.   Cunimings,   10 

cunious    tenant,  and   not   he  able  to  C.  B.,  N.  S.  421. 

get  rid   of   liini — unless,  indeed,  he  (/;)  See  as  to  this,  Walsh  i:  Lons- 

can  get  judgment  signed  for  rent  due,  dale,  21  Ch.  D.  9,  ante,  p.  86. 
and  seize  the  term  of  years  in  execu-  (/)  Baylis  v.  Le  Gros,  4  C.  B.,  N.  S. 

tion.  537,  539;  6  Id.  552.     As  to  "relief 

(/)  Lit.  s.  325 ;  Doe  d.  Wilson  v.  against  forfeiture  "  see  post,  Sect.  6. 

Connor  v.  Bradley,  1  How.  211,  217;  .Jackson  v.  Harrison,  17  Johns.  (N.  Y.) 
66,  71  (simply  in  afternoon  will  not  do)  ;  Remsen  v.  Conklin,  18  Id.  447,  450 
(per  Spencer,  Ch.  J.);  Van  Rensselaer  v.  .Tewett,  2  N.  Y.  141;  Smith  v. 
Wliitbeck,  13  (^liio  St.  471  (must  be  at  front  door  sufficient  time  before  sun- 
set to  allow  for  counting  money);  Chipman  v.  Emeric,  3  Cal.  283;  Gaskill  v. 
Trainer,  Id.  334 ;  Gage  v.  Bates,  40  Id.  384  (the  rule  is  now  changed  by 
statute  in  California). 

Disavowal  of  title  waives  demand.     Jackson  v.  Collins,  11  .Johns.  (N.  Y.)  1. 

Breaches  of  orditiari/  corenants  do  not  work  forfeitures.  Pickard  i-.  Kleis, 
56^ich.  004;  Langley  v.  Ross,  55  Id.  103;  Hilsendegen  v.  Scheich,  Id.  468. 

499 


*311  DETERMINATION   OF   TENANCY.  [Ch.VIII.  S.5. 

grant  of  a  higher  interest  in  the  land;  or  where  he  acknowl- 
edges in  court  the  fee  to  be  in  a  stranger ;  for  having  thus 
solemnly  protested  against  the  right  of  his  lessor,  he  is 
estopped  by  the  record  from  claiming  an  interest  under 
him  (y),  but  anything  of  this  sort  can  seldom,  if  ever,  now 
happen,  real  actions  having  been  abolished:  2,  by  act  in 
pais,  where  he  aliens  the  estate  in  fee  (A-).^  Where  a  tenant 
delivered  up  possession  of  the  premises  and  the  lease,  in 
fraud  of  his  landlord,  to  a  person  who  claimed  under  an 
hostile  title,  with  the  intention  of  enabling  him  to  set  up 
that  title,  not  with  the  intention  that  he  should  hold  under 
the  lease ;  it  was  held,  that  the  term  was  forfeited  (?). 
Where  a  lessee,  who  had  paid  rent  sometimes  to  a  trustee 
and  sometimes  to  a  cestui  que  trust,  gave  up  possession  on 
the  last  da}^  of  the  term,  but  before  the  term  was  ended,  to 
tlie  j^erson  who  had  been  trustee,  and  not  to  the  party  then 
having  the  legal  title  ;  it  was  held,  that  as  the  act  was  equivo- 
cal, it  did  not  amount  either  to  a  surrender  or  a  forfeiture 
of  the  term  (w?).  Where  a  forfeiture  may  be  incurred  by  a 
grant  or  deed,  it  is  necessary  that  the  deed  be  a  valid  instru- 
ment, for  if  by  reason  of  any  defect  it  be  void,  it  will  not 
work  a  forfeiture  of  the  estate  (w)  :  but  granting  a  lease  of 

0")  Pout,  Sect.  8.  (m)  Ackland  v.  Lntlcy,  9  A.  &  E. 

(k)  Kees  v.  Irvington,  Cro.  Eliz.  822.       879. 

(/)  Doe  d.  Ellerbrock  v.  riynii,  1  ()))  Dcnn  d.  Dolman  v.  Dolman,  5 

C,  M.  &11.  137.  T.  R.  041;   Doe  d.  Lloyd  v.  Powell, 

5  B.  &  C.  308,  312. 

^  Disavowal  of  lessor's  title.  — Express  or  implied  disavowal  terminates 
tenancy  at  lessor's  option.  Wells  r.  Sheerer,  78  Ala.  142;  Jackson  c.  Collins, 
11  Johns.  (N.  Y.)  1  (perpetual  lease  terminated)  ;  Newman  ?•.  Rutter,  8 
Watts  (Pa.)  51,  54  {]>er  Rogers,  J.,  applies  doctrine  to  tenancies  for  years, 
hut  doubt  if  it  applies  to  leases  in  fee)  ;  Jackson  v.  Vincent,  4  Wend.  (N.  Y.) 
(V-\?>  (lease  for  si.xty-seven  years  terminated)  ;  Duke  v.  Harper,  6  Yerfj.  (Tenn.) 
280;  Doty  v.  Burdick,  83  111.  473;  Brown  v.  Keller,  32  Id.  151,  155;  Tuttle  r. 
Reynolds,  1  Vt.  80;  Currier  v.  Pkrl,  13  Me.  21();  Campbell  v.  Procter.  0 
Cirecnl.  (Me.)  12;  liryant  ;•.  Tucker,  19  Id.  383;  as  receiving  deed  from 
stranf^cr,  Bennock  v.  Whipple,  12  Me.  34() ;  makinj?  conveyance  in  fee,  for 
years,  or  in  niortfjage,  "Ware  v.  Wadleifjh,  7  Id.  74  ;  Esty  v.  Baker,  50  Id. 
325;  Little  v.  Palister,  4  Id.  209;  i)ointinK  out  premises  (to  he  levied  ujjon) 
ae  own  property,  Cam])bell  r.  Procter,  (5  (Jreenl.  (Me.)  12;  claiminj;  iinder 
deed  from  third  party,  Jackson  i\  Vincent,  4  Wend.  (N.  Y.)  (533;  or  declaring 
that  one  had  taken  deed  or  afrreed  to  accept  lease  from  third  party,  Jackson 
V.  Collins,  11  Johns.  1,  &c. 

500 


Cii.VIII.  S.  5.]  FOKFEITURE.  *312 

the  land  for  more  years  than  he  himself  has  is  no  forfeiture, 
because  it  is  only  a  contract  between  him  and  his  sublessee 
(or  rather  assignee),  which  cannot  possibly  prejudice  the 
interest  of  the  original  lessor,  and  does  not  even  pretend  to 
usurp  or  touch  the  freehold  or  inheritance.  A  pro- 
viso in  a  lease  for  re-entry  on  a  condition  *  broken  [*312] 
can  only  operate  during  the  term  (o).  But  it  will 
extend  to  any  new  implied  tenancy  from  year  to  year  upt)n 
the  like  terms  and  conditions  (77). 

Time  and  place  of  performance  of  condition.  —  Where  a  time 
certain  is  appointed  in  a  proviso  or  condition  for  the  perform- 
ance of  anything,  neither  party  is  bound  to  attend  at  any 
other  time ;  and  if  it  is  provided  that  any  act  be  done  on  a 
day  certain,  but  no  hour  of  the  day  is  specified  wherein  the 
same  shall  be  done,  the  party  must  attend  such  a  length  of 
time  before  and  until  sunset  as  may  be  convenient  to  do  the 
act.  If  a  place  be  limited  and  agreed  on  by  the  parties 
where  the  condition  is  to  be.  performed,  the  party  who  is  to 
perform  is  not  obliged  to  seek  the  party  to  whom  it  is  due 
elsewhere,  nor  is  he  to  whom  it  is  to  be  performed  ohlir/ed  to 
accept  of  the  performance  elsewhere ;  but  he  may  accept  it 
at  another  place,  and  it  will  be  good  (^). 

Effect  of  the  Statute  of  Limitations.  —  The  Real  Property 
Limitation  Act,  1874  (37  &  38  Vict.  c.  74),  bars  the  party 
who  has  a  right  to  enter  for  a  forfeiture,  but  who  neglects 
to  do  so  for  more  than  twelve  years  after  his  right  accrued  (r). 
Where  an  ejectment  is  founded  on  a  particular  forfeiture,  it 
must  be  commenced  within  twelve  years  after  such  forfeiture 
accrued  (s).  But  a  lessor  is  not  bound  to  take  advantage 
of  the  first  or  any  other  forfeiture  committed  during  the 
term  (?).  Therefore  it  is  no  defence  to  an  ejectment  com- 
menced after  the  expiration  of  the  lease  that  a  forfeiture  and 


(o)  Johns  V.  Whitley,  3  Wils.  127.  (s)  Cole  Ejec.  11. 

(p)  Thomas  v.  Packer,  1   H.  &  N.  (t)  Doe   d.   lioscawan    v.   Bliss,    4 

669.  Taunt.    735;    Doe     d.    Sheppard     v. 

(tj)  Bac.  Abr.  tit.  Conditions  (O.  4).  Allen,  3  Taunt.  78;  Doe  d.  Bryan  v. 

(r)  Doe  d.  Tarrant  v.  Hillier,  3  T.  Bancks,  4  B.  &  A.  401 ;  Doe  d.  Baker 

R.  102.  V.  Jones,  5  Exch.  498. 

601 


*313  DETERMINATION   OF   TENANCY.  Ch.  VIII.  S.  5, 

right  of  re-entry  thereon  accrued  under  the  lease  more  than 
twelve  years  before  the  commencement  of  the  action  (zt). 

Estate  of  party  entering.  —  It  may  be  laid  down  for  a  gen- 
eral rule  that  he  who  enters  or  recovers  by  ejectment  for  a 
condition  broken  shall  be  seized  or  possessed  of  that  estate 
which  the  lessor  had  at  the  time  of  the  estate  made  upon 
condition ;  and  he  may  avoid  all  mesne  charges  and  incum- 
brances (a;).^ 

(b)    Construction  of  Proviso  for  Re-entry.'^ 

Construction  of  proviso  for  re-entry.  —  Provisoes  for  re-entry 
in  leases  are  conditions  annexed  to  the  term,  and  are  to  be 
construed,  like  other  contracts,  according  to  the  intent  of 
the  parties  to  be  collected  from  the  words  used,  and  not 
with  the  strictness  of  conditions  at  common  law  (?/)  ;  there- 
fore, where  there  is  a  proviso  in  a  lease,  that  on  non- 
[*313]  payment  of  rent  or  non-performance  *  of  any  of  the 
lessee's  covenants  the  term  shall  cease,  the  lessor,  and 
not  the  lessee,  has  the  option  of  determining  a  lease  upon  a 
breach  made  (z).  A  j)roviso  in  a  lease,  that,  upon  breach  of 
any  of  the  covenants  therein  on  the  part  of  the  lessee,  the 
lessor  may  re-enter  on  the  premises,  "-and  the  same  have 
again,  as  if  the  said  lease  had  never  been  made,"  means,  that 
the  lease  is  to  be  void  from  and  after  re-entry  by  the  lessor, 
and  does  not  deprive  him  of  the  right  of  bringing  an  action 
of  covenant  for  rent  which  accrued  previously :  and  this 
principle  equally  api)lies  to  a  covenant  for  repairs  or  other 
service  to  be  rendered  by  the  lessee  (a).     An  agreement  of 

(«)  Cole  Ejor.  11  ;  Doo  d.  Allen  v.  E.  &  B.  CfiT  ;  0  II.  L.  Cas.  G72 ;  27  L. 

Blakoway,    5    C.    &    P.  o<i:];  Doc    d.  J.,  Q.  B.  ;52I ;  IVrry  v.  Davis,  3  C.  B., 

Cook  V.  Danvers,  7  Ea.st,  200.  N.  S.  7G9. 

(x)  Co.    Lit.   202;    Bac.    Abr.    tit.  (z)  Rede  v.  Farr,  6  M.  &  S.   121. 

Conditions  (O.  4)  ;  Cole  Ejec.  G8.  And  see  the  cases  ante,  181. 

(//)  Doe   d.  Davis  n.  Eisani,  Moo.  («)  Hartshorn  v.   Watson,  4  Bins. 

&M.  189;  Doe  f/,  Muston  V.  Gladwin,  N.    C.    178;  G   Dowl.    404;    see   also 

«  Q.  B.  05.3,  9G1  ;  Croft  i;.  Lumley,  5  Selby  i;.  Browne,  7  Q.  B.  G20. 

'  Voluntary  -wraste  will  terminate  a  tenancy  at  will  at  option  of  landlord. 
Walcol  V.  I'onieroy,  :i  I'ick.  (.Mass.)  121  (selliiifi-  olT  manure);  IMiillijJS  v. 
Covert,  7  Johns.  (N.  Y.)  1  (cutting  timber)  ;  SultVrn  v.  Townsend,  9  Id.  35^ 
36  ( fter  curiam^. 

^  See  unlc,  (a),  notes. 

502 


Ch.  VIII.  S.  5.]  rOEFEITUKE.  *313 

demise  contained  a  clause  that  if  tlie  rent  should  be  unpaid 
for  ten  days,  or  if  the  lessee  should  not  observe  all  the  con- 
ditions, &c.,  then  it  should  be  lawful  for  the  lessor  to  enter 
upon  and  take  possession  of  the  premises,  and  to  expel  the 
lessee,  without  any  legal  process,  and  as  effectually  as  a 
sheriff  might  do  on  a  recovery  in  ejectment;  and  that,  in 
case  of  such  entry  and  an  action  being  brought,  the  defend- 
ant might  plead  leave  and  licence  in  bar ;  it  was  held,  that 
the  lessee's  right  to  possession  as  tenant  continued  until  the 
lessor  had  availed  himself  of  the  licence  given  (A).  Such  a 
clause  does  not  dispense  with  a  formal  demand  of  tlie 
rent  (c-).  An  agreement  to  let  a  house  and  for  the  lessee 
to  make  certain  alterations,  and  if  they  were  not  done  that 
the  lessor  might  retake  possession,  and  that  the  agreement 
should  be  null  and  void,  is  voidable  only  at  the  election  of 
the  lessor  if  the  lessee  does  not  make  the  alterations  ((?). 
Where  in  an  agreement  amounting  to  an  actual  demise  there 
was  a  clause  in  the  following  form,  "it  is  stipulated  and 
conditioned  that  the  lessee  shall  not  underlet ; "  it  was  held, 
that  these  words  created  a  condition,  and  being  such,  upon 
breach  of  it  the  lessor  might  maintain  ejectment,  without  an 
express  clause  of  re-entry  (e).  A  proviso  that  the  lessee 
shall  pay  120/.  per  annum  creates  both  a  covenant  and  a 
condition,  and  therefore  for  breach  of  it  an  ejectment  may 
be  maintained  without  any  express  power  of  re-entry  (/). 
If  by  a  written  agreement  premises  are  let  for  a  term,  "  at 
and  under  the  rent  of  80/.,"  it  is  an  agreement  by  the  lessee 
to  pay  that  rent ;  and  therefore  if  there  be  a  power  of  re- 
entry in  case  of  breach  of  "  any  of  the  agreements  therein 
contained,"  the  lessor  has  a  right  of  re-entry  on  non-pay- 
ment of  rent,  although  there  is  no  express  agreement  to 
pay  rent  (^g).     A  proviso    that   if   buildings    should  not  be 

(h)  Kavanagh  r.  Gudge,  7  M.  &  G.       &  C  .S08;  Simpson  v.  Tittcrell,  Cro. 
316;  ID.  &L.  928.  Eliz.   242;     Marsh    v.    Curteys,    Cro. 

(c)  Barry  v.  Glover,    10    Ir.  Com.       Eliz.  528  ;  Cole  Ejec.  402. 

L.    R.  113;  Acocks  v.  Phillips,  5  H.  ( /")  Harrington  v.  Wise,  Cro.  Eliz. 

&  N.  183.  48C';  cited  8  B.  &  C.  31G ;  Cole  Ejec. 

(d)  Doe  d.  Nash  v.  Birch,  1  M.  &       402. 

W.  402 ;  Hayne  v.  Cummings,  16  C.  (q)  Doe  d.  Eains  v.  Kneller,  4  C. 

B.,  N.  S.  421.  &  P.  3. 

(e)  Doe  d.  Henniker  v.  Watt,  8  B. 

503 


*31-1  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  5. 

[*314]  *  completed  on  a  certain  day  "  it  shall  be  lawful  for 
the  lessors  into  the  demised  premises  or  any  part 
thereof  in  the  name  of  the  whole  [omitting  the  words  'to 
re-enter ']  and  repossess,"  would  seem  to  give  a  right  of  re- 
entry (/i). 

Insensible  proviso.  —  Where  a  proviso  for  re-entry  was  in- 
sensible, the  court  refused  to  decide  its  meaning,  and  non- 
suited the  plaintiff  in  an  ejectment  for  a  forfeiture  (i). 
Where  the  lessee  covenanted  to  pay  the  rent,  and  not  to 
assign  without  the  leave  of  the  lessor,  and  there  was  a  pro- 
viso for  re-entry  if  the  rent  was  in  arrear,  or  if  all  or  any  of 
the  covenants  tlteremafter  contained  on  the  part  of  the  lessee 
should  be  broken ;  and  there  were  no  covenants  on  the  part 
of  the  lessee  after  the  proviso,  but  only  a  covenant  by  the 
lessor  that  upon  the  lessee  paying  the  rent,  and  performing 
all  and  eveiy  the  covenants  thereinhefore  contained  on  his 
part  to  be  performed,  he  should  quietly  enjoy ;  it  was  held, 
that  the  lessor  could  not  re-enter  for  breach  of  the  covenant 
not  to  assign,  for  that  the  proviso  was  restrained  by  the 
word  thereinafter  to  subsequent  covenants ;  and  though 
there  were  none  such,  yet  the  court  could  not  reject  the 
word  (Z").  A  proviso  giving  a  power  of  re-entry  if  the  lessee 
"  shall  do  or  cause  to  be  done  any  act,  matter  or  thing  con- 
trary to  and  in  breach  of  any  of  the  covenants,"  does  not 
apply  to  a  breach  of  the  covenant  to  repair,  the  omission  to 
repair  not  being  aw  act  done  within  the  proviso  (/)• 

Proviso  for  re-entry  for  breach  of  negative  covenant.  —  It  has 
been  said  to  be  a  general  rule  that  the  proviso  for  re-entry 
applies  only  to  the  breach  of  an  affirmative  and  not  to  the 
breach  of  a  negative  covenant  (m).  If  the  proviso  be  ex- 
pressed to  operate  in  case  of  "default  in  performance"  or 
"failure  to  perform,"  or  the  like,  this  rule  would  seem  to  hold 


(//)  Hunt  If.  Eisliop,  8  Exch.  075.  (/)  Doe  rl.  Al)dy  r.  Stevens,  3  B.  & 

(0  Doe  d.  Wyndliam   v.  Carew,  2  Ai\.'2'.n);  Cole  Ejee.  407. 

Q.  B.  ;317;  but  see  Doe  (/.  Darke  v.  (w)  West  v.  Dobb,  39  L.  J.,  Q.  B. 

Bowditeb,  8  Q.  B.  !>7;5.  100  ;  Excli.  Clianib.  per  Clianncll,  B. ; 

(/.)  Doe  d.  Spencer  v.  Godwin,  4  M.  see  also  Doe  d.  Pulk  v.  Marehetti,  1 

&  S.  205.  B.  &  Ad.  715;  Evans  v.   Davis,  G9  L. 

T.  at  pp.  .']<(2,  31)4. 

604 


Cii.  VIII.  S.  5.]  FOEFEITURE.  *315 

good ;  and  indeed  in  Hyde  v.  Warden  (n)  the  Court  of  Appeal 
was  prepared  to  hold,  if  it  were  neeessary,  that  the  power  of  re- 
entry in  event  of  the  lessee  "  wilfully  failing  or  neglecting  to 
perform  any  of  the  covenants  "  does  not  apply  to  a  breach  of 
a  negative  covenant.  But  as  was  pointed  out  by  Blackburn, 
J.,  in  Wadham  v.  Postmaster  General  (o),  the  difficulty  arises 
in  consequence  of  the  form  of  the  i)roviso  for  re-entry.  A 
proviso  expressed  to  operate  in  case  of  "  breach  "  or  "•  non- 
observance  "  for  instance,  as  well  as  in  case  of  non-perform- 
ance, would  seem  clearly  to  apply  to  the  breach  of  a  negative 
covenant. 

Proviso  for  re-entry  for  -waste  to  fixed  value.  —  Where  a 
lease  contained  a  proviso  for  re-entry,  if  the  lessee 
*  committed  waste  to  the  value  of  10s.,  and  the  lessor  [*315] 
re-entered,  and  brought  ejectment  in  consequence  of 
the  tenant's  having  pulled  down  some  old  buildings  of  more 
than  10s.  value,  and  substituted  others  of  a  different  descrip- 
tion :  it  was  held,  that  the  waste  contemplated  in  the  proviso 
was  waste  producing  an  injury  to  the  reversion,  and  that  it 
was  a  question  for  the  jury  whether,  under  all  the  circum- 
stances, such  waste  to  the  value  of  10s.  had  been  com- 
mitted (/»). 

Effect  of  covenant  ■with  penalty  on  proviso  for  re-entry.  — 
Where  there  was,  amongst  others,  a  covenant  not  to  carry 
off  hay  under  a  penalty,  and  a  clause  followed  which  enumer- 
ated all  the  covenants  except  that,  and  provided  for  re-entry 
upon  breach  of  any  of  the  covenants ;  it  was  held,  that  the 
penalty  did  not  prevent  the  clause  of  re-entry  from  applying 
to  the  hay  covenant,  the  words  being  large  enough  (</). 
Similarly,  where  the  reddendum  clause  stipulated  for  an 
additional  rent  in  case  of  the  lessee  carrying  on  certain 
trades  which  he  covenanted  not  to  carry  on,  and  a  proviso 
for  re-entry  for  breach  of  covenants  generally,  it  was  held 
that  the  lease  could  not  be  construed  as  meaning'  that  the 
lessee  was  entitled  to  carry  on  the  trades  in  question  on  pay- 

(n)  L.  R.,  3  Ex.  D.  at  p.  82.  (7)  Doe  d.  Antrobus  v.  Jepson,  3 

(0)  L.  R.,  6  Q.  B.  at  p.  648.  B.  &  Ad.  402. 

(/j)  Doe  d.  Earl  of  Darlington  v. 
Bond,  5  B.  &  C.  855. 

505 


*316  DETERMIXATrOX   OF   TENANCY.        [Cii.  VIII.  S.  5. 

ment  of  the  additional  rent,  and  that  the  right  of  re-entry 
might  be  exercised  on  breaches  upon  which  the  additional 
rent  became  payable  (?•). 

Proviso  for  re-entry  in  case  of  execution.  —  Where  a  lease 
contained  a  clause  of  re-entry,  in  case  the  term  of  years 
thereb}"  granted  should  be  extended  or  taken  in  execution; 
and  before  the  end  of  the  term,  the  sheriff  entered  the  prem- 
ises under  a  writ  of  extent  against  tlie  lessee  at  the  suit  of 
the  crown,  held  an  inquisition,  and  seized  the  lessee's  inter- 
ests into  the  king's  hands ;  it  was  held,  that  this  proceeding 
was  a  taking  in  execution  within  the  latter  clause  of  the  con- 
dition, and  that  the  term  was  determined  and  forfeited  to 
the  lessor  (s) ;  and  where  the  condition  was,  amongst  other 
things,  to  be  void  "if  the  lessee  should  incur  any  debt  on 
which  any  judgment  should  be  signed,  entered  up  or  given 
against  him,  and  on  which  an}^  writ  of  fieri  facias,  or  other 
writ  of  execution,  should  be  issued,"  and  the  tenant  gave 
a  warrant  of  attorney,  on  which  judgment  was  entered  up 
and  execution  issued  and  the  tenant's  goods  were  taken,  and 
the  lessor  entered ;  it  was  held,  that  he  was  entitled  to 
the  emblements  (t). 

Proviso  for  re-entry  in  case  of  bankruptcy.  —  A  proviso  was, 
that  in  case  the  lessee  should  commit  an  act  of  bankruptcy, 
whereon  a  commission  or  fiat  in  bankruptcy  should  or  might 
be  issued,  and  under  which  he  should  be  duh)  found 
[*316]  and  *  declared  a  bankrupt,  the  term  should  deter- 
mine ;  the  tenant  became  bankrupt,  and  was  found 
and  declared  a  bankrupt,  but  there  was  not  a  proper  petition- 
ing creditor's  debt  on  Avliich  the  fiat  was  founded ;  it  was  held 
by  two  judges,  against  the  opinion  of  Parke,  B.,  that  the 
lessee  was  not  duly  found  and  declared  a  bankrupt  Avithiu 
the  meaning  of  the  proviso  (?/).  A  proviso  Avas,  that  if  the 
lessee,  his  executors,  administrators  or  assigns,  should  be- 
come bankrupt  or  insolvent,  or  suffer  any  judgment   to   be 


(r)  Wt'ston    V.   Metropolitan    Asy-  (J)  Davics  v.  Eyton,  7  Bing.  154. 

lums  Board,  L.  R.,  8  Q.  B.  D.  387 ;  (»)  ^^oe  d.  Lloyd  v.  Ingleby,  15  M. 

40  L.  T.  l(i«.  &  W.  465. 

(s)  Rex    V.  Topping,   1    M'Clcl.    & 
You.  544. 

606 


Cii.  VIII.  S.  5.]  FORFEITURE.  *316 

entered  against  liiin  ])y  confession  or  otherwise,  or  suffer  any 
extent,  process  or  proceedings  to  be  had  or  taken  against 
him,  whereby  any  reasonable  probability  might  arise  of  the 
estate  being  extended,  &c.,  the  estate  should  determine,  and 
the  lessor  have  a  power  to  re-enter ;  the  tenant  died  during 
the  term,  and  by  his  will  devised  the  premises  to  his  exec- 
utors on  trust,  and  the  surviving  executor  became  a  bank- 
rupt; it  was  held  the  lessor's  right  of  i-e-entry  thereupon 
accrued  (a^).  The  non-payment  of  a  debt  mentioned  in  an 
insolvent's  schedule  was  held  not  to  be  a  continuing  insol- 
vency, so  as  to  constitute  a  new  forfeiture  of  a  lease,  the 
former  forfeiture  by  the  insolvency  having  been  waived  (^). 
A  lease  for  three  lives  contained  a  proviso  that  if  the  lessee, 
his  heirs,  &c.,  should,  during  the  continuance  of  the  term, 
happen  to  become  insolvent,  and  unable  in  circumstances  to 
ofo  on  with  the  manao-ement  of  the  farm,  the  demise  should 
from  thenceforth  cease  and  be  absolutely  void :  the  court 
doubted  whether  the  attainder  of  the  tenant  for  felony  was  a 
forfeiture  of  the  lease  ;  but  held,  that  if  it  Avas  a  breach  of 
the  condition,  it  was  not  a  continuing  breach,  but  was  con- 
temporaneous with  the  conviction  (2). 

Proviso  for  re-entry  for  ceasing  to  work  mines.  —  Where  a 
lease  of  coal  mines  reserved  a  royalty  rent  for  every  ton  of 
coal  raised,  and  contained  a  proviso  that  the  lease  should  be 
void  altogether  if  the  tenant  should  cease  working  at  any 
time  within  two  years ;  but  after  the  working  had  ceased 
more  than  two  years  the  lessor  received  rent ;  it  was  held, 
that  the  lease  was  not  absolutely  void  by  the  lessee's  ceasing 
to  work,  but  voidable  only  at  the  option  of  the  lessor ;  and 
that  he  might  avoid  the  lease  upon  any  cessation  to  work, 
commencing  two  years  before  the  day  of  the  demise  in  the 
ejectment  (a). 

For  non-production  of  cestui  que  vie.  —  In  a  lease  for  years 
if  a  person  should  so  long  live,  there  was  a  covenant  to  pro- 

(.r)  Doe  of.  Bridgeman  v.  David,  1  B.   &  Ad.  705.     See  further,  p.  274, 

C,  M.  &  R.  405 ;  Doe  d.  Williams  v.  ]>ost. 
Davis,  0  C.  &  P.  614.  (o)  Doe  d.  Bryan  v.  Bancks,  4  B. 

(y)  Doe    d.   Gatehouse    v.   Rees,  4  &  Ad.  401 ;  Doe  d.  Boscawan  v.  Bliss, 

Bing.  N.  C.  384.  4  Taunt.  735;  Roberts  v.  Davey,  4  B. 

(r)  Doe  d.  Griffith  v.  Pritchard,  5  &  Ad.  664. 

507 


*317     .  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  0. 

duce  that  person,  or,  if  he  should  be  in  a  foreign  country,  to 
make  it  appear  by  a  good  and  sufficient  certificate  that  he 
was  living,  with  a  proviso  for  re-entry  on  default ; 
[*317]  the  person  having  *  gone  to  Brazil,  an  affidavit  that 
the  deponent  had  three  years  before  seen  him,  and 
had  often  heard  from  him  since,  and  was  convinced  that  he 
was  alive  nine  months  before  when  the  deponent  left  Brazil, 
was  held  not  to  be  a  sufficient  certificate  within  the  covenant, 
and  that  therefore  a  forfeiture  was  incurred  (5). 

For  no  sufficient  distress.  —  Under  a  clause  of  forfeiture  in 
case  no  sufficient  distress  can  be  found  upon  the  premises, 
every  part  of  the  premises  must  be  searched  (c). 

For  non-payment  of  rates.  —  Where  a  lessee  has  broken  his 
covenant  to  pay  rates  and  taxes,  the  lessor  may  avail  himself 
of  the  proviso  for  re-entry  without  proof  of  any  demand 
made  (c?). 

(c)    Who  may  avail  themselves  of  a  Forfeiture. 

Not  the  lessor.  —  A  lessee  cannot  avail  himself  of  his  own 
act  or  default  to  vacate  a  lease  ;  on  the  principle  that  no  man 
shall  be  permitted  to  take  advantage  of  his  own  wrong  (<?). 

The  lessor  or  his  assigns. — No  one  can  re-enter  for  a  for- 
feiture but  the  person  then  legally  entitled  to  the  rent  or  to 
the  reversion  (/)  ;  but  a  lessor  who  has  demised  his  whole 
interest,  subject  to  a  right  of  re-entry  on  breach  of  a  condi- 
tion, may  enter  on  the  condition  being  broken,  though  he 
have  no  reversion  (<7).^  A  reversioner  who  has  parted  with 
his  reversion,  either  absolutely  or  by  way  of  mortgage,  can- 

{h)  T^antlle  v.  Lory,  G  A.  &  E.  218.  Doe  d.  Barney  v.  Adams,  2  C.  &  J. 

(c)  Kocs  d.  Powell  v.  King,  Forrest,  232  ;  Doe  (/.  Barker  v.  Goldsmith,  2 
19 ;  2  Brod.  &  B.  bU.  C.  &  J.  ()74. 

(d)  Davis  v.  Burrell,  10  C.  B.  821.  (7)  Doe  d.  Freeman  v.  Bateman,  2 

(e)  Rede  v.  Farr.  0  M.  &  S.  121.  B.  &  A.  KiS ;  Colville  v.  Hall,  14  Ir. 
(/)  Ilotley  V.  Scott,  Lofft,  319  a;       Com.  L.  R.  205,  C.  P. 


^  Jackson  ?'.  Collins,  11  .Tohns.  (N.  Y.)  1.  A  lessor  under  a  perpetual  lease 
with  re-entry  proviso  may  re-enter  for  disavowal  of  title  or  non-payment  of 
rent. 

608 


Ch.VIII.  S.  5.]  FORFEITURE.  •    *318 

not  re-enter  or  maintain  ejectment  for  a  forfeiture  (A),  nor 
after  his  reversion  has  been  merged  and  extinguished  (i). 

Persons  having  equitable  estates.  —  It  was  held  befoie  the 
Judicature  Act  that  a  riglit  of  entry  could  not  be  effectually 
]"eserved  to  a  stranger  to  the  legal  estate,  although  he  joine.d 
in  the  demise  and  had  some  equitable  or  beneficial  estate  or  in- 
terest in  the  property  (/c).  Thus,  where  by  lease  a  mortgagee 
demised,  and  the  executrix  of  the  mortgagor  demised  and 
confirmed,  and  a  power  of  re-entry  for  breach  of  covenants 
was  reserved  to  tliem  or  either  of  them^  it  was  held,  that  the 
deed  operated  as  a  demise  by  the  mortgagee,  and  a  confirma- 
tion by  the  executrix,  and  that  the  proviso  for  re-entry 
enured  only  to  the  mortgagee,  and  not  to  both  (?). 

Trustees.  —  The  same  rule  apj^Jied  where  trustees  and 
cestui  qui  trust  joined  in  a  lease,  reserving  rent  to 
the  cestui  que  trust,  with  a  proviso  for  re-entry  *  on  [*318] 
non-payment  (m),  and  where  the  tenant  for  life  and 
the  reversioner  joined  in  a  demise  (w).  The  effect  of  the  Judi- 
cature Act  is  to  allow  beneficiaries  to  avail  themselves  of  a 
forfeiture  (o),  but  in  practice  they  will  generally  be  repre- 
sented by  their  trustees. 

Devisees,  coparceners,  &c.  —  Where  a  power  to  determine 
a  lease  is  reserved  to  the  lessor,  his  heirs,  executors  or  admin- 
istrators, it  will  extend  to  his  devisee  (^)).  Where  a  power 
for  re-entry  for  breach  of  covenants  is  reserved,  and  the 
reversion  descends  to  coparceners,  it  seems  that  one  or  more 
of  them  cannot,  without  the  other  or  others,  maintain  eject- 
ment for  a  forfeiture,  the  condition  or  proviso  for  re-entry 
not  being  divisible  (^).  A  lease  granted  under  a  power  con- 
tained in  a  settlement  reserved  a  right  of  entry  to  the  lessor 

(h)  Fenn  d.  Matthew  v.  Smart,  12  (»;)  Dno  (J.  Barker  r.  Goldsmith,  2 

East,     443 ;      Doe     il.     Marriott      v.  C.  &  J.  674. 

Edwards,  5  B.  &  Ad.   1005;  Doe  d.  («)  Treport's    case,   6    Co.    R.    15; 

Prior  (;.  Ongley,  10  C.  B.  25.  Cole  Ejec.  404. 

(0  Webb  V.  Russell,  3  T.  R.  .393,  (o)  Jadicature  Act,  1873,  s.  24;  R. 

402;  Threr  v.  Barton,  Moore,  94.  S.  C.  Order  XVI.  rules  7,  11,  13. 

{k)  Doe  d.  Barber  v.  Lawrence,  4  (/>)  Roe  d.  Bamford  v.  Hajley,  12 

Taunt.  23;  Lit.  s.  847  ;  Co.  Lit.  214  b.  East,  464. 

(/)  Doe  d.  Barney  ;•.  Adams,  2  C.  (7)  Doe  (/.  Rutzen  v.  Lewis,  5  .4.  & 

&  J.  232  ;  Moore  v.  Earl  of  Plymouth,  E.  277. 
3  B.  &  A.  06. 

509 


*319  DETERMINATION    OF   TENANCY.  [Cn.  VIII.  S.  5. 

and  his  assigns ;  it  was  lield,  that  "  assigns  "  meant  assigns 
of  the  settlor ;  and  that  although  the  right  of  re-entry  could 
not  be  well  reserved  to  the  lessor,  yet  that  the  owners  of  the 
reversion  under  the  settlement  for  the  time  being  were 
entitled  to  the  advantage  of  it  as  "  assigns  "  (r).  Where  'a 
lease  was  granted  of  a  piece  of  land  with  two  partly-erected 
messuages  thereon,  and  the  lessee  covenanted  to  complete 
them  within  two  months,  and  also  to  keep  the  said  messuages 
in  repair  during  the  term,  with  a  proviso  for  forfeiture  for 
breach  of  an}-  of  the  covenants,  and  the  messuages  were 
never  completed,  but  after  the  expiration  of  the  two  months 
the  reversion  was  assigned  to  the  plaintiff,  and  afterwards  the 
messuages  were  much  dilapidated  in  the  roofs  and  other 
parts  ;  it  was  held,  that  whether  the  plaintiff  could  or  not 
maintain  ejectment  for  not  completing  the  messuages  within 
the  two  months,  he  could  certainly  do  so  for  the  subsequent 
non-repair  (s). 

Right  of  assignee  of  reversion  to  re-enter.  —  At  common  law, 
no  one  but  the  grantor  could  re-enter  for  a  forfeiture ;  and 
no  grantee  or  assignee  of  the  reversion  could  take  the  bene- 
fit or  advantage  of  a  condition  for  re-entry  (^),  but  by  32 
Hen.  8,  c.  34,  all  grantees  of  the  reversion,  their  heirs,  ex- 
ecutors, successors  and  assigns,  have  the  like  advantage 
against  the  lessees,  their  executors,  administrators  and  as- 
signs, hy  entry  for  non-payment  of  rent,  or  for  doing  tvasfe  or 
other  forfeiture,  and  the  same  remedy  by  action  only  for  not 
performing  other  conditions,  covenants  and  agreements  con- 
tained in  the  said  leases  as  tlie  lessors  or  grantors  themselves 
had  (w). 

[*319]  *  (d)  mtry  of  Lessor. 

Entry  for  a  forfeiture  generally.  —  Generally  speaking, 
where  a  forfeiture  lias  been  incurred  for  breach  of  any 
covenant  or  condition,  the  kissor  must  do  some  act  eviden- 
cing liis  intention  to  enter  for  the  forfeiture  and  determine 

(r)  ^Jrc-onaway  r.   Hart,    14    C.    IJ.  f/)  Lit.  s.  .')74 ;  Co.  Lit.  214. 

348;  2.".  L.  J.,  C.  r.  115.  (»)  As   to   tlie  application   of  this 

(a)  Bennett  v.  Herring,  3  C.  B.,  N.  act,  see  Chap.  VIL,  Sect.  3,  "  Assign- 

S.  370.  ment  of  Reversion,"  ante,  236. 

510 


Cu.  VIII.  S.  G.]  FORFEITURE.  *3iy 

the  lease  (.r) :  and  tlie  lease  will  be  avoided  from  that  time 
onlij  (y).  Perhaps  an  actual  entry  should  be  made  lefore 
action  to  avoid  a  freehold  lease ;  but  the  action  itself  is  suffi- 
cient to  avoid  a  lease  for  years  (2). 

Entry  by  corporations  aggregate.  —  A  corporation  aggregate 
cannot,  without  deed,  authorize  their  servant  or  agent  to 
enter  into  land  on  their  behalf  for  a  condition  broken  («)*^ 

(e)  For  Non-payment  of  Rent? 

In  ejectment  proviso  for  re-entry  necessary.  —  No  ejectment 
can  be  maintained  for  non-payment  of  rent  unless  the  reser- 
vation amount  to  a  condition,  for  there  is  an  express  proviso 
in  the  lease  or  agreement  giving  the  landlord  a  right  to  re- 
enter and  determine  the  lease  or  tenancy  for  sucli  non-pay- 
ment (6). 

Demand  of  rent  dispensed  with  by  agreement.  —  Such  con- 
dition or  proviso  niiiy  by  express  words  dispense  with  the 
necessity  of  a  formal  demand  of  the  rent ;  as  where  it  says, 
"  although  no  formal  demand  shall  have  been  made  thereof," 
or  to  that  effect  (c).  If  the  proviso  be  for  re-entry  on  de- 
fault in  payment  of  rent  within  twenty -one  days,  being  de- 
manded, the  demand  must  be  made  after  the  twenty-one 
days  have  elapsed  ((/). 

By  the  Common  Law  Procedure  Act,  1852  (15  &  16  Vict, 
c.  7G),  s.  210,  a  formal  demand  of  the  rent  is  rendered  un- 
necessary in  all  cases  between  landlord  and  tenant  when 
one-half  year's  rent  is  in  arrear,  and  no  sufficient  distress  is 
to  he  found  on  the  demised  premises,  or  any  part  thereof. 

{x)  Fenn  d.  ^Matthews  r.  Smart,  12  {h)  Doe   d.  Dixon  v.  Roe,  7  C.  B. 

East,  444,  451 ;  Arnsby  v.  Woodward,  i;}4;  Hill  v.  Kempshall,  Id.  975. 

6  B.  &  C.  519;  Roberts  v.  Davey,  4  (c)  Doe  d.  Harris  i-.  Masters,  2  B. 

B.  &  Ad.  064 ;  Baylis  v.  Le  Gros,  4  C.  &  C.  490 ;  Goodright'  d.  Hare  v.  Cater, 

B.,  N.  S.  537 ;  6  Id.  552.  2  Doug.  477,  486. 

(//)  Cole  Ejec.  408.  {d)  Phillips  v.  Bridge,  43  L.  J.,  C. 

[z)  Cole  Ejec.  403.  P.  13;  29  L.  T.  692. 

(a)  1  Roll.  514. 

^  A  deed  is  not  necessary  and  a  formal  vote  is  not  always  required  in  the 
United  States.     See  ante,  Ch.  8,  (a),  notes. 
-  See  ante,  Ch.  8,  (a),  notes. 

511 


*320  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  5. 

countervailing   the    arrears    then    due ;    and  the    lessor  has 
power  to  re-enter  for  non-payment  thereof  (e). 

To  what  cases  applies.  —  The  above  enactment  only  applies 
—  1.  As  between  landlord  and  tenant.  But  the  assignee  of 
a  lessee,  whether  by  way  of  mortgage  or  otherwise,  is  a 
"  tenant "  within  the  meaning  of  the  enactment  (/)  :  so  is  a 
mere  sublessee,  because  he  is  a  person  "  claiming  or  deriving 
under  the  lease  "  (^).  2.  One  half-3'ear's  rent  at  the 
[*320]  least  must  *  be  in  arrear  (7i).  3.  No  sufficient  dis- 
tress to  be  found  on  the  demised  premises,  or  any 
part  thereof,  countervailing  the  arrears  due  (/)  ;  i.e.  all  tlie 
arrears,  and  not  merely  half-a-year's  rent  where  more  is 
due  (k').  But  a  strict  search  must  be  made  on  the  demised 
premises  after  the  last  day  for  saving  the  forfeiture,  and 
before  the  writ  issues  (or  at  all  events  before  the  writ  is 
served)  (?)?  to  ascertain  that  there  is  no  sufficient  distress 
on  any  part  of  the  demised  premises  (?«).  Unripe  growing 
crops  may  amount  to  a  sufficient  distress  (n).  A  distress  is 
not  to  be  "found"  on  the  demised  premises  where  it  cannot 
be  got  at  by  reason  of  the  tenant  having  locked  the  outer 
doors,  &c.  (0),  nor  unless  the  goods  are  so  visibly  there  that 
a  broker  going  to  distrain  would,  using  reasonable  diligence, 
find  them  so  as  to  be  able  to  distrain  them  (p).  If  a  dis- 
tress be  found  on  the  demised  premises  sufficient  to  satisfy 
so  much  of  the  rent  as  would  reduce  the  arrears  to  less  than 


{e)  See  post,  Chap.  XXII.,  Sect.  1.  (m)  Rees  d.  Powell  v.  Kinp:,  For- 

(/)  Doe    d.    Whitfield    v.   Roe,   8  rest,  19,  cited  2  Brod.  &  B.  r)U  ;  Doe 

Taunt.  402;   Williams  v.  Bosanquet,  d.  Forster  v.  Wandlass,  7  T.  R.  117; 

1  Brod.  &  B.  2r>8.  Doe  d.  Smelt  v.  Fuchau,  15  East,  28(; ; 

(9)  Doe  d.  Wyatt  r.  Byron,  1  C.  B.  Doe  d.  Ilaverson  r.  Franks,  2  C.  &  K. 

623;  3D.  &L.  31.  078;  Price  r.   Worwood,  4   II.  &  N. 

(A)  Hill  I'.  Kenipshall,  7  C.  B.  075;  512;   28  L.  J.,  E.x.  .320;  AVheeler  v. 

Cotesworth  i-.  Spokes,  10  C.  B.,  N.  S.  Stevenson,  G  IT.  &  N.  155;  30  L.  .7., 

]0:i;  30  L.  J.,  C.  P.  220;  2  F.  &  V.  Ex.  06. 
390.  (»)  Ex  prnle  Arnison,  L.  R.,  3  Ex. 

(i)  Doe  (/.  Forster  ;•.  Wandlass,  7  56;  37  L.  J.,  Ex.  57. 
T.  R.  117.  (o)  Doe  d.   Chippendale  v.  Dy.son, 

(k)  Cross  V.  Jordan,  8  Exch    140;  1  Moo.  &  M.  77;    Doe  d.  Cox  c.  Roe, 

overruIinR   Doe   d.   Powell   r.   Roc,  0  5  D.  vt  L.  272  ;   Hammond  r.  Mather, 

Dowl.  548.  3  F.  &  F.  151. 

(/)  Doe  d.  Dixon  r.  Hoc,  7   C.    B.  (/»)  Doe  d.   Haverson  i'.  Franks,  2 

134.  C. &  K.  078. 

512 


Cii.  VIII.  S.  5.]  FORFEITURE.  *321 

half-a-year's  rent,  and  it  is  wished  to  bring  ejectment,  no 
distress  should  be  taken  (jq) ;  but  clear  proof  should  be 
obtained  as  to  the  insufficiency  of  the  distress  to  satisfy  all 
the  arrears  (r).  A  distress  for  rent,  under  whi(;h  part  was 
recovered,  will  not  prevent  an  ejectment  for  the  residue, 
provided  such  residue  amount  to  half-a-year's  rent,  or  more, 
and  there  be  no  suflicient  distress  on  the  premises  to  satisfy 
such  residue  (s)  ;  but  it  is  otherwise  where  the  proceeds  of 
the  distress  reduces  the  arrears  to  less  than  half-a-year's 
rent  (f).  4.  The  landlord  or  lessor  to  whom  the  arrears  are 
due  must  have  "right  by  law  to  re-enter  for  non-payment 
thereof  "  (u).  The  right  to  re-enter  must  be  a  right  to  enter 
and  determine  the  lease  for  non-payment  of  the  rent,  and  not 
merely  a  right  to  enter  and  hold  the  premises  until  the 
arrears  are  paid :  otherwise  tliis  section  will  not  apply  (x). 
The  twenty-one  days  or  other  specified  period  mentioned  in 
the  proviso  must  have  elapsed  before  any  forfeiture  can 
accrue  for  non-payment  of  the  rent  (?/).  If  the  proAdso  con- 
tain the  words  "being  lawfully  demanded,"  no  de- 
mand *  will  be  necessary  if  it  be  proved  that  half-a-  [*321] 
year's  rent  was  due  before  action  brought,  and  no 
sufficient  distress  to  be  found  on  the  demised  premises  (z). 
Service  of  the  writ  of  ejectment  under  the  above  circum- 
stances is  sufficient  "  without  any  formal  demand  or  re- 
entry" (a).  The  statute  makes  such  service  a  substitute 
for,  and  equivalent  to,  a  formal  demand  of  the  rent  accord- 
ing to  the  strict  rules  of  the  common  law  (J).  And  the 
right  of  re-entry  by  virtue  of  the  statute  must  be  taken 
to  have  accrued  on  the  day  when  the  forfeiture  would  have 

{q)  Cotesvvortli  v.  Spokes,  10  C.  B.,  (?/)  Doe  d.  Dixon  v.  Roe,  7  C.  B. 

N.  S.  103 ;  30  L.  J.,  C.  P.  220  ;  2  F.  &  134. 

F.  390.  (s)  Doe  d.  Scholetield  v.  Alexander, 

(r)  Doe  d.  Haverson  v.  Franks,  2  2  M.  &  S.  525  ;  Doe  d.  Earl  of  Shrews- 

C.  &  K.  678.  bury  v.  Wilson,  5  B.  &  A.  3G4   (4th 

(s)  Bre-.ver  d.  Ld.  Onslow  v.  Eaton,  point)  ;  Id.  384,  394  ;  1  Wms.  Saund. 

3  Doug.  230.  287  a,  n. ;  Cole  Ejec.  417. 

(0  Cotosworth  V.  Spokes,  10  C  B.,  (a)   15  &  16  Vict.  c.  76,  s.  210. 

N.  S.  103;  30L.  J.,  C.  P.  220.  (6)  Cole     Ejec.    417;    Hassell    d. 

(h)  Brewer  d.  Ld.  Onslow  v.  Eaton,  Hodgson  v.  Gowthwaite,  Willes,  500, 

3  Doug.  230,  cited  6  T.  K.  220.  507. 

(x)  Doe  d.   Darke  v.  Bowditoh,  8 
Q.  B.  973. 

513 


*321  DETERMINATION    OF   TENANCY.  [Ch.  VIII.  S.  5. 

accrued  at  common  la^y  if  a  demand  of  payment  had 
been  dul}'  made,  and  not  when  the  writ  of  ejectment  was 
served  (c).  The  statute  merely  authorizes  an  action  of  eject- 
ment in  those  cases  to  which  it  applies,  but  it  will  not  justify 
the  landlord  or  lessor  in  making  an  actual  entry  for  non- 
payment of  the  rent  (tf). 

Demand  of  rent  according  to  the  common  law.  —  Unless 
there  are  express  words  in  the  lease  or  agreement  dispensing 
with  a  formal  demand  of  the  rent,  or  the  case  falls  within 
the  above  enactment,  no  entry  or  ejectment  can  be  main- 
tained for  non-payment  of  rent  unless  there  has  been  a 
formal  demand  thereof  made  according  to  the  strict  rules  of 
the  common  law  (e).^     Such  rules  are  as  follows  : 

1.  By  whom.  —  The  demand  must  be  made  by  the  land- 
lord or  by  his  agent  duly  authorized  in  that  behalf  (/). 

2.  On  what  day.  —  It  must  be  made  on  the  very  last  day 
to  save  the  forfeiture.  Therefore,  if  the  proviso  for  re-entry 
be  on  non-payment  of  rent  for  thirty  days  after  it  becomes 
due,  the  demand  must  be  made  on  the  thirtieth  day  after  the 
rent  became  due  (exclusive  of  the  day  on  which  it  became 
due),  and  not  on  any  other  day  before  or  afterwards  (^). 

3.  At  sunset.  —  It  must  be  made  a  convenient  time  before 
and  at  sunset  (/*).  It  must  be  continued  actively  or  con- 
structively until  sunset  («). 

4.  At  the  proper  place.  —  It  must  be  made  at  the  p7'oper 
place.  Therefore,  if  the  lease  or  agreement  specify  the 
place  at  Avhich  the  rent  is  to  be  paid,  the  demaiul  must  be 
made  there  and  not  elsewhere  (A;).  But  if  no  place  be  so 
appointed,  the  demand  must  be  made  upon  the  land,  and  at 

(c)  Doe  (I.  Lawrence  v.  Shawcross,  ((j)  Doe  rf.  Dixon  v.  Roe,  7  C.  B. 

3  B.  &  C.  7r)2.  184;    Doe  d.  Forster  i-.  Wantllass.  7 

((/)  Cole  Ejeo.  GO.  T.  R.  117  ;  Smith  and  Bustard's  case, 

(c)  Molineux  i'.  Moiineux,  Cro.  .lac.  1  Leon.  141 ;  Plow.  70  ;  Co.  Lit.  202  a. 

144;  Doe  d.  Forster  v.   Wandlass,  7  (It)   Co.  Lit.  202  a ;  1  Wms.  Saund. 

T.  K.  117  ;  Acocks  v.  Phillips,  5  H.  &  287  ;  Cole  Ejee.  4i:'5. 

N.  18.'];  Barr  v.  Glover,  10  Ir.  Com.  (/)   Wood  and  Cliiver's  case,  4  Leon. 

L.  R.  li:].  170;  Acocks  i-.  Phillips,  5  H.  &  N.  l.s;J. 

(/)   Roe  d.  "West  v.  Davis,  7  East,  (/)   Borrou^h's  case,  4  Co.  R.  7:]; 

^m;  Toms  i-.  Wilson,  32  L.  J.,  Q.   B.  Buskin  v.  Edmunds,  Cro.  Eliz.  415; 

33;  Id.  382.  Co.  Lit.  202  a. 

*  See  ante,  (a),  notes. 

614 


Cii.  VIII.  S.  5.]  FOIIFEITUKE.  *322 

the  most  notorious  place  of  it  (Z).  Tlierefore,  if 
there  be  a  *  dwelling-house  upon  the  land,  the  de-  [*322] 
mand  must  be  made  at  the  front  door  of  it ;  but  it 
is  not  necessary  to  enter  the  house,  although  the  door  be 
open  (m).  If  the  premises  consist  of  a  wood  only,  the 
demand  must  be  made  at  the  gate  of  the  wood,  or  at  some 
highway  leading  through  the  wood,  or  other  most  notorious 
place.  If  one  place  be  as  notorious  as  another,  the  lessor 
has  election  to  demand  it  at  which  he  will  (n).  Such 
demand  must  be  actuallj^  made,  although  there  be  no  person 
present  on  behalf  of  the  tenant  to  answer  it  (o).  Or  it  may 
be  made  on  a  subtenant  (|>). 

5.  The  demand  must  be  made  of  the  precise  sum  then  paya- 
ble, and  not  one  penny  more  or  less  (9).  If  the  rent  be 
payable  quarterly,  and  more  than  one  quarter  is  due,  only 
the  last  quarter's  rent  should  be  demanded,  and  not  the 
previous  arrears,  otherwise  the  demand  will  be  altogether 
bad  (r). 

(f)    Waiver  of  Forfeiture. 

Acknowledgment  of  continuance  is  waiver  of  forfeiture.  — 
Courts  of  law  always  lean  against  forfeitures  ;  therefore, 
whenever  a  landlord  means  to  take  advantage  of  any  breach 
of  covenant  or  condition  so  that  it  should  operate  as  a  for- 
feiture of  the  lease,  he  must  take  care  not  to  do  anything 
which  may  be  deemed  an  acknowledgment  of  the  continu- 
ance of  the  tenancy,  and  so  operate  as  a  waiver  of  the  for- 
feiture.^ 

(J)   Cole  Ejec.  413.  (17)  Fabian    and   Winsor's   case,   1 

(m)  Co.  Lit.  201b;  1  Wms.  Saund.  Leon.  305;   Fabian  v.  Winston,  Cro. 

287.  Eliz.  209. 

(n)  Co.  Lit.  202  a.  (r)  Scot    v.    Scot,    Cro.    Eliz.    73; 

(o)   Kidwelly  I'.  Brand,  Plow.  70  a,  Tonikins    v.    Pincent,  7    Mod.  97;    1 

70  b  ;  Co.  Lit.  201  b.  Salk.  141 ;  Doe  d.  Wheeldon  v.  Paul, 

(/))  Doe  (/.  Brook  v.  Brydges,  2  D.  3  C.  &  1'.  613. 
&  K.  29. 

1  Waiver  —  what  constitutes.  —  A  breach  of  covenant  to  pay  rent 
(joined  to  a  re-entry  clause)  is  waived  by  receipt  of  rent  after  entry.  Coon 
V.  Brickett,  2  N.  H.  163.  Receipt  of  rent  after  breach  of  covenant  against 
subletting  (joined  with  re-entry  clause)  is  a  waiver  or  breach  of  covenant 
against  assigning.  Crouch  v.  Wabash,  St.  L.  &  Pac.  Ry.  Co.,  22  Mo.  App. 
315. 

515 


*323  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  5, 

Lying  by.  —  ^Merely  lying  by  and  witnessing  the  breach  is 
no  waiver  :  some  positive  act  must  be  done  (s).  The  gen- 
eral rule  is,  that  if  a  lessor,  or  other  person  legally  entitled 
to  the  reversion,  knowing  that  a  forfeiture  has  been  incurred 
by  the  breach  of  any  covenant  or  condition,  do  is  any  act 
whereby  he  acknowledges  the  continuance  of  the  tenancy  at  a 
later  period,  he  thereby  waives  such  forfeiture  (^). 

"What  acts  amount  to  -waiver.  —  Thus,  the  following  acts 
amount  to  a  waiver  :  —  Demand  of  rent  accruing  due  after 
the  forfeiture,  if  the  demand  be  absolute  and  unqualified  (?/). 
Acceptance  of  rent  accruing  due  after  the  forfeiture  (x). 
Such  an  acceptance  operates  as  matter  of  law  to  waive  all 
forfeitures  then  known  to  the  lessor,  notwithstanding  any 
protest  on  his  part  against  such  waiver  (?/) ;  but  the 
[*323]  subsequent  receipt  of  rent  *  due  prior  to  the  forfeit- 
ure is  no  waiver  (3).  Action  for  rent  accruing  due 
after  the  forfeiture  (a).     Distress  for  rent  (6). 

A  forfeiture  of  a  lease  by  a  lessee's  insolvency  has  been 
held  to  be  waived  by  acceptance  of  rent  from  him  after  his 
discharge  under  the  Insolvent  Act  (c). 

"Waiver  by  pleading.  —  Forfeiture  may  be  waived  by  a 
pleading,  as  was  held  in  a  case  where  a  landlord,  suing  in 
respect  of  breaches  of  covenants  agreed  to  be  inserted  in  a 
lease  contracted  for,  claimed  an  injunction  and  possession, 
but  stated  in  his  pleadings  that  he  was  willing  to  grant  the 
lease  (c?). 

Waiver  by  distress.  —  It  is  well  settled  that  a  forfeiture  is 

(s)   Doe  d.   Shcppard  v.  Allen,  3  Davenport  v.  Reg.,  L.  R.,  3  App.  Caa. 

Taunt.  78.  115,  P.  C. 

(0   Dendy  v.  Nicholl,  4  C.  B.,  N.  S.  (z)   Marsli   v.   Ciirteys,   Cro.    Eliz. 

376;    27  L.  .T.,  C.  P.  220;    Pcllatt  v.  528;    Price  v.  Worwood,  4.  H.  &  N. 

Booaey,  31  L.  J.,  C.  P.  281  ;  Ward  v.  612 ;  28  L.  J.,  Ex.  .329. 

Day,  4  B.  &  S.  .337;   5  Id.  359;   33  («)  Dendy  v.  Nicholl,  4  C.  B.,N.  S. 

L.  J.,  Q.  B.  3,  254.  376 ;  27  L.  J.,  C.  P.  220. 

(«0  Doe  <l.  Nash  v.  Birch,  1  M.  &  {l>)   Coteswortli  ;•.  Spokes,  10  C.  B., 

W.  402,  at  p.  408,  per  Parke,  B.  N.  vS.  103 ;  30  L.  .1.,  C.  P.  220. 

(x)  Doe  d.  Gatehouse  v.   Bees,  4  (c)  Doe   d.  Gatehouse  v.  Rees,  4 

Binp.  N.  C.  384  ;    Doe  d.  Griffith  v.  Bing.  N.  C.  384. 

Pritchard,  5  B.  &  Ad.  705.  {d)   Evans  v.  Davis,  L.  R.,  10  Cli 

(y)  Croftv.Lumley,5  E.  &  B.048;  D.  747;   48  L.  J.,  Ch.  223;  39  L.  T 

6  H.  L.  Gas.  672 ;  27  L.  J.,  Q.  B.  321 ;  391  ;  27  W.  R.  28f.. 

516 


Cu.  VIII.  S.  5.]  FORFEITURE.  *324 

waived  by  distress  (c),  and  it  seems  also,  as  was  pointed  out 
by  Crompton,  J.,  in  Ward  v.  Day  (/),  that  the  doctrine  of 
waiver  by  distress  depends  on  a  different  principle  from  that 
of  waiver  by  other  acts  —  the  principle  that  distress  can  only 
be  levied  on  a  tenant  — so  that  a  distress  waives  any  forfeit- 
ure not  only  up  to  the  day  on  which  the  rent  distrained  for 
was  due,  as  had  been  previously  held  in  Cotesworth  v. 
Spokes  (^),  but  up  to  the  day  of  the  distress  itself.  A  case 
in  the  Year  Books  appears  to  show  this  (A). 

No  ■waiver  by  acceptance  of  rent,  &c.,  after  ejectment.  —  If 
ejectment  be  brought  on  a  forfeiture  of  a  lease,  and  after  the 
bringing  of  such  ejectment  the  landlord  accept  rent  (i),  or 
distrain  (A-),  or  set  up  as  a  cause  of  forfeiture  a  subsequent 
non-payment  of  rent  (Z),  it  is  no  waiver.  This  best  appears 
from  Grim  wood  v.  Moss,  where  a  landlord  brought  eject- 
ment on  the  21st  of  July,  and  after  action  brought,  distrained 
for  rent  due  on  the  24th  of  June.  It  was  held  that,  in  the 
action  of  ejectment,  he  might  rely  on  a  forfeiture  accruing 
before  the  24th  of  June,  and  it  was  said  that  the  distress  was 
a  simple  act  of  trespass  (m).  Of  course,  if  there  be  an  inten- 
tion to  waive,  it  is  otherwise,  as  was  held  on  demurrer  in  a 
case  where  the  facts  pleaded  amounted  to  an  agreement  for 
a  new  tenancy  on  the  terms  of  an  old  lease  (w). 

Lessor  must  have  notice  of  forfeiture.  —  In  order  to  render 
acceptance  of  rent  or  any  other  act  a  waivei'  of  a  forfeiture,  the 
lessor  must  have  notice  or  knowledg-e  of  the  forfeiture 

o 

*  at  the  time  of  the  supposed  waiver  (o),  unless  the  [*324] 
forfeiture  be  of  such  a  nature  as  to  be  equally  within 

(e)  Cotesworth  r.  Spokes,  s»/»-a.  C.  P.  300;   41   L.  J.,  C.  P.  239;   27 

(/)  4  B.  &  S.  .336 ;  33  L.  J.,  Q.  P..  L.  T.  768. 
11;  Smith  L.  &  T.  (3rd  ed.)  lol ;  1  (/)  Tolenian  r.  Portbury,  41  L.  J., 

Sm.  L.  C.  (8th  ed.)  61  ;  Cotesworth  v.  Q.  B.  98,  Ex.  Cli. 
Spokes  was  not  cited  in  Ward  y.  Day.  (in)  Grimwood  v.  Moss,  iibi  supra, 

(g)   Supra,  note  (ft).  per  Willes,  J. 

(A)  14  Ed.  3,  3rd  Ass.  cited  in  Ward  (n)  Evans  v.  Wyatt,  43  L.  T.  176. 

V.  Day  hy  Blackourn,  J.  (o)  Pennant's  case,  3  Co.  R.  63  b; 

(0  Doe  d.  Moorecraft  v.  Meux,  4  Duppa  v.  Mayo,  1  Wms.  Saund.  288  a, 

B.  &  C.  606;  1  C.  &  P.  346;  Jones  v.  b,  note   (16)  ;  Harvie  v.  Oswel,  Cro. 

Carter,  15  M.  &  W.  718.  Eliz.  5()3,  572;  Goodright  d.  Walker 

(i)  Grimwood    v.    Moss,   L.    R.,   7  v.  Davids,  2  Cowp.  803. 

517 


*324  DETERMINATION   OF   TENANCY.        [Ch.  VIII.  S.  5. 

the  knowledge  of  both  the  lessor  and  lessee  (p).  The  act 
which  is  insisted  on  as  amounting  to  a  waiver  is  matter  of 
evidence  only,  to  show  with  what  intent  it  was  done,  to  be 
left  to  the  jury  under  the  circumstances  of  the  case  (^). 
Where  a  lessor  was  too  ill  to  attend  to  business,  and  it  did 
not  appear  that  he  knew  of  a  forfeiture,  his  son,  who  col- 
lected the  rents,  was  held  not  to  have  authority  to  waive  a 
forfeiture  (r). 

Continuing  breach.  —  Where  the  breach  is  of  a  continuing 
nature,  the  waiver  of  any  forfeiture  up  to  a  certain  day  will 
afford  no  defence  to  an  ejectment  for  a  subsequent  breach  (s)  ; 
as  where  the  covenant  is  to  keep  the  demised  premises  in 
repair  during  the  term  (^),  or  to  keep  them  insured  in  a 
certain  manner  from  loss  or  damage  by  fire  during  the 
term  (it),  or  not  to  use  certain  rooms  in  a  particular  man- 
ner (x).  Acceptance  of  rent  which  becomes  due  pending  a 
notice  to  repair,  is  no  waiver  of  a  subsequent  forfeiture  occa- 
sioned by  non-compliance  with  such  notice  (^).  Indeed,  it 
would  seem  that  acceptance  of  rent  due  after  the  expiration 
of  the  notice  will  not  bar  an  ejectment  if  the  premises  con- 
tinue subsequently  unrepaired  (2). 

Distress  only  ackno'wrledges  tenancy  up  to  day  of  distress.  — 
A  distress  and  continuance  in  possession  may  be  a  waiver  of 
a  forfeiture  existing  at  the  time  (a)  ;  but  a  distress  is  only 
an  acknowledgment  of  a  tenancy  to  the  day  of  the  distress, 
and  a  waiver  of  any  forfeiture  to  that  time  (i).  Where  the 
plaintiff,  after  the  service  of  a  writ  in  ejectment  for  non-pay- 

(p)   Iloe  d.  Gregson  v.  Harrison,  2  (r)   Doc  d.  Ambler  v.  Woodbridge, 

T.  R.  425.  0  IJ.  &  C.  370. 

(7)   Doe  </.  Cheney  y.  Batton,  Cowp.  (1/)   Doe  d.  Rankin  v.  Briiidlcy,  4 

243.  B.  &  Ad.  84;  Doe  d.  Baker  v.  Jones, 

(r)   Doe  d.  Nash  v.  Birch,  1  M.  &  5  Exi,li.  498,  505. 
W.  402.  (s)   Fryett  d.   Harris  v.  Jcfferys,  1 

(.s)   Cole  Ejpc.  409.  Esp.  .'393;  Cole  Ejee.  409. 

(/)   Doe  d.  Baker  v.  Jones,  5  Exch.  («)   Doe    d.   Taylor  v.  Jolinson,  1 

498.  Stark.  411 ;  Zoueh  d.  Ward  v.  Willin- 

(»)   Doe  d.   Mustin  v.  Gladwin,  G  gale,  1  II.  Blae.  311. 
Q.  B.  953,  950;  Penniail  v.  Ilarborno,  (/>)   Doe  d.   Flower  v.  Peck,  1  B.  & 

1 1  Q.  B.  308,  374  ;   Hyde  v.  Watts,  12  Ail.  428 ;  Ward  v.  Day,  4  B.  &  S.  337  ; 

M.  &  W.  254  ;  1  I).  &  L.  479  ;   Doe  d.  33  L.  J.,  il  B.  54;    9.  c.  in  error,  5 

Flower  v.  Peek,  1  B.  &  Ad.  428.  1'..  &  S.  359. 

518 


Cii.  VIII.  S.  5.]  FORFEITURE.  *32r) 

merit  of  rent,  distrained  for  rent  which  subsequently  became 
due ;  and  by  the  notice  of  distress  stated  that  sucli  distress 
was  made  without  prejudice  to  the  year's  rent  due  on  the 
25th  of  March,  and  for  which  ejectment  proceedings  were 
then  pending ;  it  was  hekl,  that  such  distress  did  nut  oper- 
ate as  a  waiver  of  the  ejectment  (e). 

Breach  of  covenant  to  repair.  —  A  forfeiture  incurred  by 
breach  of  a  covenant  to  repair  generally,  is  waived  by  a 
notice  given  by  the  landlord,  under  a  special  covenant 
*  that  he  should  enter  and  do  the  repairs,  and  dis-  [*325] 
train  for  the  expenses  (<i).  A  forfeiture,  by  omis- 
sion to  repair  after  notice,  is  suspended  but  not  w^aived  by 
an  agreement  to  allow  further  time  to  repair  (e). 

Of  covenant  not  to  sublet.  —  The  acceptance  of  rent  with 
knowledofe  of  a  written  subletting  for  a  time  certain  is  a 
waiver  of  a  forfeiture  for  the  breach  of  a  covenant  not  to 
sublet,  and  the  breach  is  not  a  continuing  breach,  although 
the  covenant  be  that  the  lessee  "  will  not  permit  any  person 
to  occupy  "  (/). 

Of  covenant  not  to  carry  on  trade,  &c.  —  If  a  lessee  exercise 
a  trade  on  the  demised  premises  by  which  his  lease  is  for- 
feited, the  landlord  does  not,  by  merely  lying  by  and  witness- 
ing the  act,  waive  the  forfeiture  (^),  as  some  positive  act  of 
waiver,  as  by  receipt  of  rent  (A),  is  necessary;  but  if  he  per- 
mit the  tenant  to  expend  money  in  improvements,  it  would 
seem  that  it  is  evidence  to  be  left  to  a  jury  of  his  consent  to 
the  alteration  of  the  premises  (z) :  and  if  a  lessor  after  a  for- 
feiture advise  a  person  to  purchase  the  term  of  his  lessee, 
he  cannot  maintain  an  ejectment  for  a  forfeiture  against  such 
purchaser;  but  he  may  do  so  if  the  party  have  an  interest, 

(c)  Bailey   v.  Mason,  2    Ir.    Rep.,  to  apply  to  the  case  of   a  covenant 

N.  S.  582.  not  to  use  the  demised  premises  in  a 

(rf)   Doe  (7.  Reutzen  v.  Lewis,  5  A.  particular  way.    Per  Bramwell,  L.  J., 

&  E.  277 ;  Roe  d.  Goatley  v.  Paine,  2  in  Lawrie  v.  Lees,  L.  R.,  14  Ch.  D.  at 

Camp.  520.  p.  262. 

(e)   Doe  i1.  Rankin  v.  Brindley,  4  (7)  Doe   d.   Sheppard   v.   Allen,  3 

B.  &  Ad.  84.  Taunt.  78. 

(/)   Walrond   v.   Hawkins,   L.  R.,  (/;)  Griffin  v.  Tomkins,  42  L.  T.  359. 

10  "C.  P.  342;  44  L.  J.,  C.  P.  116;  32  {i)   Doe  (/.  Sheppard  v.  Allen,  ubi 

L.  T.  110.     It  is  doubtful  wliether  the  sup.,  per  Mansfield,  C.  J. 
principle  of  this  case  would  be  held 

519 


*326  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  5, 

viz..  an  annuity  secured  on  the  premises,  and  the  advice  is 
merely  "to  take  to  them"  (/;).  If  A.,  tenant  for  life,  subject 
to  forfeiture,  with  a  remainder  over  to  B.,  lease  to  C.  for  a 
term,  and  afterwards  apprehending  that  he  has  forfeited, 
acquiesce  in  B.'s  claim  to  and  receipt  of  the  rent  from  C, 
his  executor  may,  on  showing  that  he  acquiesced  under  a 
false  apprehension,  recover  from  C.  the  amount  of  the  rent 
erroneously  paid  to  B. ;  for  in  order  to  constitute  a  confirma- 
tion of  the  payment,  some  act  ought  to  have  been  done  by 
A.  with  the  knowledge  of  his  own  situation  (/).  Where  land 
was  demised  with  a  covenant  by  the  lessee  to  build  and  com- 
plete thereon  houses  within  a  year,  and  a  proviso  that  if  he 
did  not,  the  lease  should  be  void;  the  houses  not  being  com- 
pleted, it  was  held,  that  the  forfeiture  was  not  waived  by  the 
steward  of  the  lessor  having  permitted  the  lessee  to  employ 
workmen  in  completing  the  houses  for  a  short  period  after 
the  forfeiture  (w).  When  the  landlord  does  any  act  amount- 
ing to  a  constructive  eviction  of  the  tenant  he  cannot  main- 
tain an  ejectment  for  a  forfeiture  for  not  repairing 
[*326]  during  the  continuance  of  such  eviction  (?i).  *A. 
demised  land  with  a  covenant  by  the  lessee  to  finish 
certain  houses  thereon,  and  with  a  power  of  re-entry  in  case 
of  default,  and  by  another  indenture  between  A.  and  the 
plaintiff,  reciting  that  A.  had  made  sub-leases  of  the  land  in 
question,  A.  assigned  the  land  to  the  plaintiff  subject  to  the 
«ub-leases ;  the  court  inclined  to  think  that  if  the  condition 
had  been  broken,  the  assignment,  subject  to  the  sub-leases, 
would  have  been  a  waiver  of  the  forfeiture  although  the  for- 
feiture was  not  known  to  A.  (o).  Though  an  acceptance  of 
rent  or  other  act  of  waiver  may  make  a  voidable  lease  good, 
it  cannot  make  valid  a  deed  or  a  lease  which  was  actually 
void  at  first;  but  where  a  lease  for  years  contains  tlie  common 
proviso  "  that  it  shall  and  may  be  lawful  for  the  lessor  to 
re-enter,"  or  a  proviso  "  that  the  term  shall  cease  and  deter- 

(k-)  Doc  <f.  Sore  v.  Eykins,  1  C.  &  (n)  I'ellatt  i;.  Boosoy,  H  L.  J.,  C.  P. 

P.  IM;  l{y.  &  Moo.  20.  '  281. 

(/)   Williaiiisc.  Bartlioloinew,  1  Bos.  (")   Hunt  v.  Bishop,  8  Exch.  G75; 

&  P.  32(!.  Hunt  V.  Remnant,  9  Exch.  G35. 

(;/()  Doer/.  Ed. Kensington  i-.Biind- 
hy,  12  Moo.  ;]7. 

520 


Cii.  VIII.  S.  O.J      RELIEF   AGAINST   FORFEITUEE.  *327 

mine  if  the  lessor  please,"  the  lease  will  be  only  voidable  by 
a  breach  of  covenant ;  and  the  forfeiture  may  be  waived  by 
a  subsequent  acknowledgment  of  a  tenancy  (p). 

Actual  waiver  does  not  operate  as  general  -waiver.  —  By 
23  &  24  Vict.  c.  38,  s.  6,  "where  any  actual  waiver  of  the 
benefit  of  any  covenant  or  condition  in  any  lease  on  the  part 
of  any  lessor,  or  his  heirs,  executors,  administrators  or  assigns, 
shall  be  proved  to  have  taken  place  after  the  passing  of  this 
act  in  any  one  particular  instance,  such  actual  waiver  shall 
not  be  assumed  or  deemed  to  extend  to  any  instance  or  any 
breach  of  covenant  or  condition  other  than  that  to  which  such 
waiver  shall  specially  relate,  nor  to  be  a  general  waiver  of  the 
benefit  of  any  such  covenant  or  condition,  unless  an  inten- 
tion to  that  effect  shall  appear." 


Sect.  6.  —  Relief  against  Forfeiture. 
(a)  The  laiv  before  the  Conveyancing  Act. 

Equitable  relief.  —  An  unqualified  proviso  for  re-entry  in 
case  of  breach  of  any  covenant  has  long  been  usually  inserted 
as  a  common  form  in  leases,  and  the  courts  of  law,  though 
"leaning  against  forfeiture,"  invariably  gave  effect  to  such 
proviso  upon  a  breach  being  clearly  proved,  however  great 
the  hardship  to  the  lessee  (5-).  Courts  of  equity  were,  there- 
fore (before  the  Judicature  Acts),  frequently  (r)  applied  to 
for  relief  by  injunction  to  restrain  actions  of  ejectment.  In 
|pv*the  case  of  th^  breach  of  the  covenant  to  pay  rent,  relief  was 
granted  from  very  early  times,  the  statute  4  Geo.  4, 
c.  28,  only  regulating  the  mode  *  of  granting  the  [*327] 
relief,  and  not  originating  it  (s).  As  for  forfeiture 
by  other  breaches,  the  early  cases  are  not  quite  uniform. 

No  equitable  relief  for  "  wilful  "  breach.  — They  will  be  found 
reviewed  by  Lord    Erskine  in  Sanders  v.  Pope  (^),  and  by 

(/j)  Doe   d.   Bristow   v.   Old,  Ad.  up   to   1847   reviewed   in  "Piatt  on 

Ejec.  155  (4th  ed.).  Leases,"  Vol.  2,  at  p.  485  et  seq. 

(q)   See  Doe  v.  Gladwin,  6  Q.  B.  at  (s)  Green  v.  Bridges,  4  Sim.  96. 

p.  961.  (t)  12  Ves.  262. 

(r)  See  the  whole  series  of  cases 

521 


*327  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  6. 

Lord  Eldon  in  Hill  v.  Barclay  (it),  and  in  Reynolds  v. 
Pitt  (a:).  In  Sanders  v.  Pope,  Lord  Erskine  granted  re- 
lief against  forfeiture  of  a  public-house  lease  incurred  by 
not  laying  out  a  particular  sum  in  repairs  within  a  given 
time,  and  declared  the  result  of  the  prior  authorities  to  be 
that  the  court  had  jurisdiction  to  grant  relief  in  all  cases 
where  full  compensation  could  be  made,  although  the 
breach  might  have  been  wilful.  But  in  Hill  v.  Barclay, 
Lord  Eldon,  though  distinguishing  Sanders  v.  Pope  (^/),  dis- 
tinctly disapproved  of  the  doctrine  that  relief  could  be  given 
in  case  of  a  wilful  breach,  and  refused  relief  in  a  case  of  non- 
repair in  which  the  landlord  had  given  a  notice  which  had 
not  been  complied  with.  But,  as  was  pointed  out  by  Stuart, 
V.-C,  in  Bamford  v.  Creasy  (2;),  Lord  Eldon  expressly  rec- 
ognized the  exceptions  in  case  of  accident  or  surprise,  and 
accordingly  relief  was  granted  in  a  case  (a)  where  it  ap- 
peared that  out  of  twenty-two  items  of  repair  twenty  had 
been  proceeded  with,  and  fourteen  completed,  and  that  the 
repairs  had  been  partially  delayed  by  the  weather ;  Stuart, 
V.-C,  mentioning  "as  an  equity  always  recognised"  the 
equity  of  a  tenant  who  has  bound  himself  by  a  covenant  to 
repair,  and  who  can  show  to  the  court  equitable  circumstances 
sufficient  to  entitle  him  either  to  a  relief  from  a  strict  per- 
formance of  the  lease,  or  to  ensure  him  against  a  forfeiture 
by  reason  of  the  neglect  to  perform  them. 

The  rule  of  Hill  v.  Barclay  was  recognized  in  Gregory  v. 
Wilson  (i)  by  Turner,  V.-C,  in  refusing  to  grant  specific 
performance  of  an  agreement  for  a  lease.  In  Nokes  v.  Gib- 
bon (c),  Kindersle}^  V.-C,  refused  relief  where  the  breach 
consisted  in  a  failure  to  construct  certain  drains,  and  in  Job 
V.  Banister  (t^),  where  a  lease  was  granted  with  a  covenant 
for  perpetual  renewal  by  the  lessor,  provided  the  lessee's 
covenants  should  be  kept.  Wood,  V.-C,  refused  to  compel 

(k)  18  Ves.  50;  and  sec  id.  IG  Ves.  (n)  Bargcnt  v.  Thompson,  4   Gift. 

402.  47;J. 

(x)  10  Ves.  134.  (I>)  0  Hare,  083. 

0/)  Sanders  v.  Pope,  12  Ves.  262.  (r)  20  T..  J.,  Ch.  483. 

(z)  3  GilT.  075.     In  this   case    the  (<!)  0  K.  &  J.  374. 
lessor  had  obtained  judgment  by  de- 
fault in  ejectment. 

622 


Cii.VIII.  S.6.]         RELIEF    AGAINST   FORFEITUIIE.  *328 

the  lessor  to  renew  or  to  restrain  him  from  ejecting  the 
lessee  for  breaches  of  covenant  to  repair  and  insure,  although 
the  lessee  had  expended  large  sums  of  money  on  the  prem- 
ises, and  their  value  was  much  increased,  the  lessee  losing 
about  5,000^.  for  a  breach  of  covenant  which  might  be  amply 
remedied  by  500^. 

Lunatic. — In  one  case,  however  —  subsequent  to  Hill  v. 
Barclay  —  Lord  Eldon  granted  relief  against  an  ejectment 
for  non-repair  brought  by  the  committee  of  a  lunatic,  on 
the  principle  that  harsh  proceedings  would  not 
*  be  for  the  benefit  of  the  lunatic's  estate  (^e}  ;  but  [*328] 
there  does  not  seem  to  be  any  direct  authority  upon 
the  question  how  far  trustees  neglecting  to  take  advantage 
of  a  forfeiture  would  be  protected  by  the  court. 

Result  of  modern  cases.  —  The  result  of  the  modern  cases 
appears  to  be  that  accident  and  surprise  afford  the  only  in- 
stances in  which  relief  was  given,  and  that  the  fact  that  a 
landlord  gained  ever  so  large  an  improved  value  by  insisting 
on  the  forfeiture  was  not  taken  into  account. 

Statutory  relief  against  failure  to  insure.  —  The  covenant  to 
insure  is  one  which  from  its  nature  may  be  broken  without 
producing  the  slightest  injury  to  the  reversion,  and  yet  a 
court  of  law  allowed  a  lessor  to  re-enter  on  the  smallest 
breach  of  it  (/).  And  for  a  long  period  no  relief  could 
have  been  obtained  in  a  court  of  ec^uity  against  an  eject- 
ment for  a  forfeiture  by  not  insuring  (^),  unless  there  had 
been  fraud  or  misleading  on  the  part  of  the  lessor  (^Ji).  But 
by  22  &,  23  Vict.  c.  35,  now  repealed  and  superseded  by  the 
Conveyancing  Act,  power  was  given  to  a  court  of  equity  to 
relieve  in  a  case  where  no  loss  had  happened,  and  the  breach 
had  been  committed  without  fraud  or  gross  negligence,  and 
there  was  an  insurance  on  foot  at  the  time  of  the  application 
to  the  court.     The  court  was  required  to  direct  a  record  of 

(e)  Ex  parte  Vaughan,  1  Turn.  &  Green  v.  Bridges,  4  Sim.  96,  cited  6 

Kuss.  434.  Q.  B.  9G1 ;  Gregory  v.  Wilson,  9  Hare, 

(/)  Doe  V.  Gladwin,  6  Q.  B.  953 ;  G83. 
post,  Chap.  XVII.,  Sect.  1.  (/,)  Meek  v.   Carter,  4  Jur.  N.  S. 

0)  White  V.  Warner,  2  Meriv.  459;  992. 

523 


1^ 


*329  DETERxMINATION    OF   TENANCY.  [Ch.  VIII.  S.  6. 

the  relief  ha^dng  been  granted,  and  had  not  power  to  relieve 
the  same  person  more  than  once  in  respect  of  the  same  cov- 
enant or  condition,  nor  to  grant  any  relief  where  a  prior 
forfeiture  had  been  already  waived  out  of  court  in  favour 
of  the  person  seeking  the  relief.  By  the  Common  Law  Pro- 
cedure Act,  23  &  24  Vict.  c.  126,  this  relief  might  be  granted 
by  a  court  of  law. 

(b)  Relief  against  Forfeiture  under  the  Conveyancing  Act. 

Except  as  above  stated,  that  is,  except  in  the  case  of  non- 
payment of  rent,  and  failure  to  insure,  and  except  in  rare 
cases  of  accident  and  surprise,  no  relief  against  forfeiture 
could  be  given  until  the  year  1882.  The  Conveyancing  and 
Law  of  Property  Act,  1881,  44  &  45  Vict.  c.  41,  which  by 
sect.  2  took  effect  from  and  after  the  31st  December,  1881, 
by  s.  14  (1)  restricts  the  landlord's  right  of  forfeiture,  and 
(2)  empowers  the  Chancery  Division  of  the  High  Court  to 
"relieve  "  against  its  exercise  in  the  following  general,  retro- 
spective, and  compulsory  terms :  — 

"  (1)  A  right  of  re-entry  or  forfeiture  under  any  proviso 
or  stipulation  in  a  lease,  for  a  breach  of  any  covenant  or 
condition  in  the  lease,  shall  not  be  enforceable,  by 
[*329]  action  or  otherwise  (z),  unless  and  *  until  the  lessor 
serves  on  the  lessee  a  notice  (Ic)  specifying  the  par- 
ticular breach  complained  of,  and  if  the  breach  is  capable  of 
remedy,  requiring  the  lessee  to  remedy  the  breach,  and  in 
any  case  requiring  the  lessee  to  make  compensation  in  money 
for  the  breach,  and  the  lessee  fails  within  a  reasonable  time 
thereafter,  to  remedy  the  breach,  if  it  is  capable  of  remedy, 
and  to  make  reasonable  compensation  in^'taoney,  to  the  satis- 
faction of  the  lessor,  for  the  breach. 

Relief  by  court  against  forfeiture.  —  "  (2)  AVhere  a  lessor  is 
proceeding,  by  action  or  otherwise,  to  enforce  such  a  right 
of    re-entry  or  forfeiture,    the    lessee    may,   in    the    lessor's 

(/)  e.r}.,  by  peaceable  re-entry,  with-  by  that  (lesifrnation,  and  served  either 

out  action.  by   loavinj^    it   at  the    last    place    of 

(/•)  By  8.  67  of   the  Act,  infra,  p.  aixxlc,  or  by  sending  it  in  a  registered 

3.30,  the   notice   must  be  in  writing,  letter  by  post,  addressed  to  the  lessee 

and  may  be  addressed  to  the  lessee  by  name. 

524 


Ch.  VIII.  S.  6.]  RELIEF   AGAINST    FORFEITURE.  *329 

action,  if  any,  or  in  any  action  brought  by  himself,  apply 
to  the  court  (/)  for  relief,  and  the  court  may  grant  or  refuse 
relief  as  the  court,  having  regard  to  the  proceedings  and  con- 
duct of  the  parties  under  the  foregoing  provisions  of  this 
section,  and  to  all  the  other  circumstances,  thinks  fit ;  and 
in  case  of  relief  may  grant  it  on  such  terms,  if  any,  as  to 
costs,  expenses,  damages,  compensation,  penalty,  or  other- 
wise, including  the  grant  of  an  injunction  to  restrain  any 
like  breach  in  the  future,  as  the  court,  in  the  circumstances 
of  each  case,  thinks  fit. 

Meaning  of  "Lease,"  "Lessor,"  and  "Lessee."  —  "  (3)  Foi'  the 
purposes  of  this  section  a  lease  includes  an  original  or  deriv- 
ative under-lease,  also  a  grant  at  a  fee  farm  rent,  or  secur- 
ing a  rent  by  condition ;  and  a  lessee  includes  an  original  or 
derivative  under-lessee,  and  the  heirs,  executors,  administra- 
tors, and  assigns  of  a  lessee,  also  a  grantee  under  such  a 
grant  as  aforesaid,  his  heirs  and  assigns ;  and  a  lessor  in- 
cludes an  original  or  derivative  under-lessor,  and  the  heirs, 
executors,  administrators, .  and  assigns  of  a  lessor,  also  a 
grantor  as  aforesaid,  and  his  heirs  or  assigns. 

Act  of  Parliament.  — "  (4)  This  section  applies  although 
the  proviso  or  stipulation  under  which  the  right  of  re-entry 
or  forfeiture  accrues  is  inserted  in  the  lease  in  pursuance  of 
the  directions  of  any  act  of  parliament  (wi)- 

Length  of  term.  —  "  (5)  For  the  purposes  of  this  section 
a  lease  limited  to  continue  as  long  only  as  the  lessee  abstains 
from  committing  a  breach  of  covenant  shall  be  and  take 
effect  as  a  lease  to  continue  for  any  longer  term  for  which 
it  could  subsist,  but  determinable  by  a  proviso  for  re-entry 
on  such  a  breach. 

Cases  to  which  section  does  not  apply.  —  "  (6)  This  section 
does  not  extend  — 

"  (i)  To  a  covenant  or  condition  against  the  assigning, 
under-letting,  parting  with  the  possession,  or  disposing   of 


(/)  That  is,  by  s.  2  (xviii.)  and  s.  (m)  See  e.(j.,  Settled  Estates  Act, 

69  (1)  of  the  Act,  the  Chancery  Divis-       1856,  19  &  20  Vict.  c.  120,  s.  32,  10 
ion   of    the    Hish    Court;    but    the       Geo.  4,  c.  50,  s.  27,  8  &  9  Vict.  c.  124. 
Queen's  Bench  Division  lias  jurisdic- 
tion to  relieve  in  an  action  before  it. 

525 


*330  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  6. 

the  land  leased  (w),  or  to  a  condition  for  forfeiture  on  the 
bankruptcy  (o)  of  the  lessee,  or  on  the  taking  in  execution 

of  the  lessee's  interest :  or  — 
[*330]  * "  (ii)  In  case  of  a  mining  lease  (p)  to  a  cove- 
nant or  condition  for  allowing  the  lessor  to  have 
access  to  or  inspect  books,  accounts,  records,  weighing 
machines,  or  other  things,  or  to  enter  or  inspect  the  mine  or 
the  workings  thereof. 

Repeal.  —  "  (7)  The  enactments  described  in  Part  I.  of  the 
second  schedule  to  this  act  (^)  are  hereby  repealed. 

Non-payment  of  rent.  —  "  (8)  This  section  shall  not  affect 
the  law  relating  to  re-entry  or  forfeiture  or  relief  in  case  of 
non-payment  of  rent. 

Retrospective  and  compulsory.  —  "  (9)  This  section  applies 
to  leases  made  either  before  or  after  the  commencement  of 
this  act,  and  shall  have  effect  notwithstanding  any  stipula- 
tion to  the  contrary." 

Effect  of  section  14  of  Conveyancing  Act.  —  The  effect  of 
this  section  is  first  to  interpose  in  favour  of  the  tenant  the 
requirement,  which  did  not  exist  at  common  law,  that  the 
landlord  shall,  before  proceeding  to  enforce  a  snp[)osed 
right  of  re-entry,  give  fair  notice  of  his  intention  to  do  so, 
in  order  that  the  parties  may  settle  the  matter  between 
themselves,  without  any  resort  to  the  court;  and  secondly,  in 
case  of  tlie  parties  so  failing  to  settle  the  matter,  to  allow 
the  tenant  (not  the  landlord,  whose  course  will  be,  if  he 
wishes  to  push  the  matter  to  extremity,  to  decline  to  be  sat- 
isfied with  the  compensation  offered)  to  apply  for  an  adjust>- 
ment  of  differences  to  a  court  having  the  most  absolute  and 
comprehensive  discretion. 

Decisions.  —  It   has   been   laid   down   that  the  lancHord's 

(n)  See  Cli.  XVII.,  Sect.  2,  post.  piirpo.ses,  tliat  is,  the  searcliinp:  for, 

(o)  See  p.  274,  ante.     By  s.  2,  suVjs.  wii>iiin}j,    workiiifj;,    gettiiiif,    iiKikiiif^ 

(xv.),  of   the    Act   "bankruptcy    in-  iiuTchaiitfible,  carrying  away,  or  dis- 

cludes    liquidation    by    arrangement,  jxising    of    mines    and    minerals,    or 

and  any  other  act  or  jiroceeding    in  jjiirposcs    connected    therewith,    and 

law    having,  under    any  act    for   tlie  includes  a  grant  or  licence  for  mining 

time  being  in  force,  effects  or  results  j)uri)oses." 

similar  to  tliose  of  bankruj)tcy."  ((/)  See  the  eflcct  of   these   enact- 
(/j)  Uy  8.  2,  subs,  (xi.)  of  tlie  .'\ct  mentswiiicli  relate  torelief  against  for- 
k's Qiining  lease  is  a  lease  for  mining  feiture  for  nou-insurance,  ]>.  .'128,  <(///<». 

526 


Ch.  VITI.  S.  0.]        RELIEF    AGAINST   FORFEITURE.  *331 

notice  under  sub-s.  1  must  expressly  require  the  tenant  to 
remedy  the  breach  complained  of  (r) ;  that  sul>s.  2  has  no 
application  where  the  landlord  has  actually  re-entered  (s), 
that  although  no  notice  may  have  been  given,  the  Court  has 
an  absolute  discretion  to  refuse  relief  (ss)  ;  and  tluit  for 
relief  to  be  grantable,  it  is  not  necessary  that  it  should  have 
been  claimed  in  the  defendant's  pleading  (^).  But  the  cases 
as  yet  (January,  1886)  reported,  throw  but  little  light  upon 
the  section. 

Service  of  notice.  —  As  to  the  service,  &c.,  of  the  notice 
under  sub-sect.  1,  sect.  67  of  the  Conveyancing  Act  provides 
that  — 

"  (1)  Any  notice  required  or  authorized  by  this  act  to  be 
served  shall  be  in  writing. 

"  (2)  Any  notice  required  or  authorized  by  this 
act  to  be  served  on  *  a  lessee  or  mortgagor  shall  be  [*331] 
sufficient  although  only  addressed  to  the  lessee  or 
mortgagor  by  that  designation,  without  his  name,  or  gener- 
all}^  to  the  persons  interested,  without  any  name,  and  not- 
withstanding that  any  person  to  be  affected  by  the  notice  is 
absent,  under  disability,  unborn,  or  unascertained. 

Service  of  notice.  —  "  (3)  Any  notice  required  or  author- 
ized by  this  act  to  be  served  shall  be  sufficiently  served  if  it 
is  left  at  the  last  known  place  of  abode  or  business  in  the 
United  Kingdom,  of  the  lessee,  lessor,  morto-aofee,  mortsraofor, 
or  other  person  to  be  served,  or,  in  case  of  a  notice  required 
or  authorized  to  be  served  on  a  lessee  or  mortgagor,  is  affixed 
or  left  for  him  on  the  land  or  any  house  or  building  com- 
prised in  the  lease  or  mortgage,  or  in  case  of  a  mining  lease, 
is. left  for  the  lessee  at  the  office  or  counting-house  of  the 
mine. 

"  (4)  Any  notice  required  or  authorized  by  this  act  to  be 
served  shall  also  be  sufficiently  served,  if  it  is  sent  by  post  in 

(r)  North     London    Land    Co.    v.  (ss)  Scott  v.  Matthew  Brown  &  Co., 

Jaquos,  32  W.  R.  283,  49  L.  T.  659  51  L.  T.  740  (relief  refused), 
(relief  granted  forfailure  to  complete  (t)  Mitchi.son  y.  Thompson,  1  C.  & 

a  house  within  a  given  time).  E.  72   (relief  granted  for  non-repair, 

(s)  Quilter  v.  Mapleson,  L.  R.  9  Q.  though  premises  in  very  dilapidated 

B.    D.    675,    C.    A.    (relief   for    non-  condition). 
insurance  was  granted). 

527 


*332  DETERMINATION    OF   TENANCY.  [Ch.  VIII.  S.  6. 

a  registered  letter  addressed  to  the  lessee,  lessor,  mortgagee, 
mortgagor,  or  other  person  to  be  served,  by  name,  at  the  afore- 
said place  of  abode  or  business,  office,  or  counting-house,  and 
if  that  letter  is  not  returned  through  the  post  office  undeliv- 
ered; and  that  service  shall  be  deemed  to  be  made  at  the 
time  at  which  the  registered  letter  would  in  the  ordinary 
course  be  delivered. 

"  (5)  This  section  does  not  apply  to  notices  served  in 
proceedings  in  the  court." 

The  words  "  by  action  or  otherivise  "  seem  intended  to  in- 
clude a  peaceable  re-entry  without  action,  and  also  to  pro- 
long the  time  within  which  the  lessee  may  aj^ply  to  the  court 
to  restrain  the  delivery  of  the  writ  of  possession  into  the 
hands  of  the  sheriff.  The  words  "  injunction  to  restrain " 
seem  to  apply  to  a  breach  of  negative  covenants  only. 

(c)  Relief  against  Forfeiture  for  Non-payment  of  Rent. 

The  law  relating  to  relief  against  forfeiture  for  non-pay- 
ment of  rent  is  expressly  excepted  from  the  operation  of  the 
14th  section  of  the  Conveyancing  Act  by  the  8th  sub-section. 

Prior  to  4  Geo.  2,  c.  28,  the  tenant  might  at  an  indefinite 
time  after  he  was  evicted  have  filed  his  bill  and  been  relieved 
against  the  effect  of  the  mere  non-payment  of  rent  (?<)  ;  but 
this  statute,  which  is  re-enacted  in  substance  by  sect.  210  of 
the  Common  Law  Procedure  Act,  1852,  confined  the  tenant 
to  a  period  of  six  months  after  execution  executed,  within 
which  he  might  obtain  relief,  in  order  to  relieve  the  landlord 
from  the  inconvenience  of  continuing  liable  to  an  uncertainty 
of  possession  {x).  The  210th  section  of  the  Common 
[*332]  Law  *  Procedure  Act,  1852,  provided  that  unless  flie 
tenant  should  proceed  for  relief  in  equity  within  six 
months  after  execution  he  should  be  "barred  and  foreclosed 
fiom  all  relief  or  remedy  in  law  or  equity,"  the  211th  that  the 
tenant  should  not  have  relief  without  payment  of  rent  and 
costs,  and  the  212th  tliat  tlie  t(!nant  might  stay  proceedings 
at  any  time  before  trial,  by  paying  the  rent  and  costs. 

(«)  Bowser  v.  Colby,  1  Hare,  125.  (.r)  Doe   d.    Hitclnns   v.   Lewi.s,    1 

Burr.  019. 

628 


Bowei  vx'fj. 


Ch.  VIII.  S.  7.]  NOTICE   TO   QUIT.  *332 

The  Ist  section  of  the  Common  Law  Procedure  Act,  1860, 
23  &  24  Vict.  c.  126,  extended  these  provisions  by  allowing 
the  court  or  a  judge  to  give  relief  in  a  summary  manner 
either  before  or  after  the  trial  up  to  and  within  the  six 
months  after  execution  executed. 

It  has  been  held  that  a  defendant  against  whom  judgment 
had  been  obtained,  in  an  action  in  which  the  plaintiff  had 
been  deprived  of  costs,  might,  under  this  section,  obtain 
relief  after  trial  upon  payment  of  rent  and  costs  of  applica- 
tion for  relief,  without  being  required  to  pay  the  costs  of 
the  action  (z). 

Sect.  7.  —  Notice  to  Quit. 
(a)  Nature  and  Operation  of. 

Nature  of  notice  to  quit.  —  The  notice  to  quit  which  it  is 
here  proposed  to  consider  is  the  certain  reasonable  notice 
required  by  law,  or  by  custom,  or  by  special  agreement,  to 
enable  either  the  landlord  or  tenant,  or  the  assignees  or  rep- 
resentatives of  either  of  them,  ivitliout  the  consent  of  the 
other.,  to  determine  a  tenancy  from  year  to  year,  or  month  to 
month,  &c.  The  term  is  also  applied  to  the  notice  given  in 
exercise  of  an  option  to  determine  a  lease,  which  is  consid- 
ered hereafter  (a).  Without  such  notice,  or  an  actual  or 
implied  surrender  (h')  or  merger  ((?),  a  tenancy  of  the  above 
nature  would  continue  in  the  tenant  and  his  assigns  or  rep- 
resentatives ;  and  the  immediate  reversion  would  continue  in 
the  landlord  and  his  assigns  or  representatives  (c?),  until  ex- 
tinguished by  the  Statute  of  Limitations  (g). 

Special  stipulations  as  to  notice.  —  The  right  to  determine  a 
tenancy  from  year  to  year  by  a  notice  to  quit  is  a  necessary 
incident  to  such  tenancy:  a  stipulation  against  any  such 
notice  being  given  by  one  party  or  by  the  other  is  repug- 
nant to  the  nature  of  the  tenancy,  and  therefore  void,  and 

(z)  Croft  I'.  London  &  County  Bank-  ((/)  Maddon  d.  Baker  v.  White,  2 

ing  Co.,  54  L.  J.,  Q.  B.  277,  C.  A.  T.  R.  159. 

(a)  Post,  Sect.  8.  (e)  3  &  4   Will.  4,  c.  27 ;   Doe  d. 

(t)  A7ife,  Sect.  8.  Landsdell  v.  Gower,  17  Q.  B.  589. 
(c)  Ante,  Sect.  4,  p.  308. 

529 


*333  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  7. 

mere  surplusage  (/).  Thus,  an  agreement  to  let  at  a  fixed 
yearly  rental,  and  not  to  give  notice  to  quit  so  long  as  the 

rent  is  paid,  constitutes  more  than  a  yearly  tenancy, 
[*333]  and  gives  the  tenant  a  right  to  stay  in,  so  *  long  as 

the  landlord's  interest  continues  and  the  tenant  pays 
rent  (^g).  The  tenancy  may  generally  be  determined  by  half- 
a-year's  notice  ^  expiring  at  the  end  of  the  first  or  any  subse- 
quent year  of  the  term  (Ji)  :  but  the  parties  may  expressl}- 
stipulate  for  a  longer  or  shorter  notice  to  quit  than  that 
usually  required  by  law  (/)  ;  or  for  a  notice  expiring  at  some 

(/)  Doe   d.  Warner  v.  Browne,  8  Q.  B.  957 ;  Doe  d.  Plunier  v.  Mainby, 

East,  165.  10  Q.  B.  473. 

((/)  King's  Leasehold   Estates,  Re,  (I)  Cole    Ejec.    31,    32 ;     Doe    d. 

L.  K.,  16  Eq.  521;  L.  T.  288;  21  W.  Pitcher   v.  Donovan,  1    Taunt.    555; 

K.  881.  .  2  Camp.  78;  Doe  d.  Green  v.  Baker, 

(A)  Doe  d.  Clarke  v.  Smaridge,  7  8   Taunt.  2-il.     Doe   d.  Robinson   v. 

1  Tenancies  from  year  to  year ;  notice  to  terminate.  —  («)  At  common 
law  the  notice  required  to  terminate  such  tenancies  was  six  months,  Jackson 
V.  Bryan,  1  Johns.  (N.  Y.)  322,  323,  324;  Jackson  v.  Rogers,  2  Caines'  Cas. 
(N.  Y.)  314,  318  (per  Kent,  J.)  ;  Witt  v.  Mayor  of  N.  Y.,  0  Robertson  (N.  Y.) 
441;  Hanchet  v.  Whitney,  1  Vt.  311  ;  Currier  v.  Perley,  24  N.  H.  219  (per 
Bell,  J.)  ;  Den  v.  Blair,  15  N.  J.  L.  181 ;  Den  v.  Drake,  14  Id.  523  ;  Bradley  v. 
Covel,  4  Cow.  (N.  Y.)  349  ;  Prickett  v.  Ritter,  16  111.  96  (per  Scates,  J.),  and 
the  notice  must  terminate  with  the  year.  Reeder  v.  Sayre,  70  N.  Y.  180,  186 
(per  Folger,  J.)  ;  Bradley  v.  Covel,  4  Cow.  (N.  Y.)  349,  351  (per  Woodworth, 
J.)  ;  Nowlan  v.  Trevor,  2  Sweeny  (N.  Y.)  67,70  (per  Monell,  J.);  Fahnestock 
V.  Faustenauer,  5  S.  &  R.  (Pa.)  174 ;  Lesley  v.  Randolph,  4  Rawle  (Pa.)  123, 
127  (per  Kennedy,  J.). 

(b)  Statutory  notices.  —  The  common  law  notice  still  remains  unchanged  in 
several  of  the  states.  In  several  others  a  notice  similar  to  the  common  law 
notice  has  been  expressly  required  by  statute,  and  in  others  the  common  law 
notice  has  been  superseded  by  a  shorter  notice  (tliree  months,  two  months, 
ninety  days,  sixty  days,  &c.,  as  the  case  may  be). 

In  Maryland  (Rev.  Code,  Art.  67,  Subtitle  7,  sec.  1)  the  required  notice  is 
six  months  ;  in  Virginia  (Code,  sec.  2785),  tliree  months  in  cities  and  towns, 
and  six  months  in  tlie  country ;  in  Nova  Scotia  (Rev.  Sts.  ch.  125),  Quebec 
(Civil  Code,  sec.  1657),  New  Brunswick  (Con.  Sts.  ch.  83,  sec.  16),  Indiana 
(Rev.  Sts.  sec.  5209),  Missouri  (l{ev.  Sts.  sec.  3077),  Colorado  (Gen.  Sts.  sec. 
1504),  North  Carolina  (Code,  sec.  1750),  and  Pennsylvania  (Act  of  Marcli 
21,  1772,  Purd.  Dig.  p.  1015),  three  nu)nths  ;  in  Mississippi  (Rev.  Code,  sec. 
1330),  two  montlis;  in  Illinois  (Sts.  of  111.  ch.  80,  sec.  5),  sixty  days;  in  Ore- 
gon, in  tenancies  for  farming  purposes,  ninety  days;  in  otlier  tenancies,  ten 
days.  Many  states  have  no  statutory  provisions  for  terminating  temmcies 
from  year  to  year,  but  leave  them  to  be  terniin.'ited  as  at  common  law.  Con- 
necticut provides  (Gen.  Sts.  sec.  2967)  tluit  a  hohling  over  shall  not  renew  a 
lease.  Some  of  tlie  states  provide  onl}'  U)V  notice  to  terminate  tenancies  at 
will,  and  from  7)eriod  to  period  sliorler  tiian  from  yeai"  to  year.  See  note, 
ante,  " 'J'he  shorter  tenancies." 

530 


Cn.  VIII.  S.  7.]  NOTICE   TO   QUIT.  *333 

other  period  of  the  tenancy  than  at  the  end  of  tlie  first  or 
some  other  year,  ex.  gr.  at  the  end  of  any  quarter  (/c)  ;  or  at 
some  particular  quarter  (?)  ;  or  at  any  time  of  the  year,  upon 
the  expiration  of  a  certain  specified  previous  notice  (w). 
But  as  the  power  of  determining  the  tenancy  at  any  time  of 
the  year  is  generally  attended  with  inconvenience  to  one  or 
both  parties,  the  language  conferring  such  power  must  be 
clear  and  explicit  (»).  Therefore,  on  a  letting  from  year  to 
year  "  to  quit  at  a  quarter's  notice,"  such  notice  must  expire 
at  the  end  of  the  first  or  some  other  year  of  the  tenancy,  and 
not  at  any  other  part  of  the  year ;  such  stipulation  merely 
substituting  a  three  months'  notice  for  the  usual  six  months' 
notice  (o).  It  seems,  that  where  a  "six  months'  notice"  on 
either  side  is  contracted  for,  a  six  lunar  months'  ^  notice  will 
be  sufficient  (^).     Where  a  tenant  is  "  a?«('rt^s "  to  be  subject 

Dobell,  1  Q.  B.  806  ;  Tookcr  v.  Smith,  (w)  Doe  d.  Green  v.  Baker,  8  Taunt. 

1   H.  &  N.  732;   Evans  v.  Whitting-  244;  Doe  f/.  King  r.  Grafton,  18  Q.  B. 

stall,  2  F.  &  F.  175;  Kogers  v.  King-  D.  496;  21  L.  J.,  Q.  B.  276  ;  Bridges 

ston-upon-Hull   Dock    Co.,  34   L.  J.,  v.  Potts,  17  C.  B.,  N.  S.  314. 
Cli.  1G5.  (h)  Cole  Ejec.  31. 

(!•)  Kemp  V.  Derrett,  3  Camp.  510;  (o)  Doe  d.  Pitcher  v.  Donovan,  1 

Rex    V.    Herstmonceau.x,  7    B.    &   C.  Taunt.  555;    2  Camp.  78;    Brown  v. 

551 ;  Collett  v.  Curling,  10  Q.  B.  785;  Burtenshaw,  7  D.  &  R.  603. ' 
Bird  V.  Defonville,  2  C.  &  K.  415,  4l8.  (/))  Rogers  v.  Kingston-upon-Hull 

(/)  Doe  d.  Rigge  v.  Bell,  5  T.  R.  Dock  Co.,  34  L.  J.,  Ch.  165. 
471. 

1  Month  means  calendar  month  in  the  United  States.  —  Sheets  ?;. 
Selden's  Lessee,  2  Wall.  177,  189,  100;  Brewer  v.  Harris,  5  Gratt.  (Va.)  285, 
398 ;  Strong  v.  Birchard,  5  Conn.  357,  360 ;  Leffingwell  v.  Pierpoint,  1  Johns. 
Cas.  (N.  Y.)  100  ;  Hardin  v.  Major,  4  Bibb  (Ky.)  104  ;  Pyle  v.  Maulding,  7 
J.  J.  Marsh.  (Ky.)  202  ;  Alston  v.  Alston,  2  Treadw.  (S.  C.  Const.)  604  ;  Wil- 
liamson V.  Farrow,  1  Bailey  (S.  C.  Ct.  of  App.)  611.  Contra,  Loring  v. 
Hallin,^,  15  Johns.  (N.  Y.)  119,  120. 

Exceptional  decisions.  —  It  has  been  held,  in  one  or  two  cases,  to  mean 
lunar  month  in  statutes,  Stackhouse  v.  Halsey,  3  Johns.  Ch.  (N.  Y.)  74  (Kent, 
Chan.,  giving  the  opinion)  ;  and  per  Savage,  Ch.  J.,  in  Parsons  v.  Chambei-- 
lain,  4  Wend.  (N.  Y.)  512,  513;  and  in  several  cases  to  mean  calendar  only 
because  the  language  used  showed  that  calendar  months  were  intended.  Par- 
sons V.  Chamberlain,  4  Wend.  512,  513  ;  Snyder  v.  Warren,  2  Cow.  518. 

By  the  weight  of  authority  the  word  "  month  "  in  statutes,  as  elsewhere, 
unexplained,  means  calendar  nnjnth.  Hunt  v.  Holden,  2  Mass.  168,  170;  Avery 
V.  Pixley,  4  Id.  460;  Kimball  v.  Lamson,  2  Vt.  138;  Churchill  v.  Merchants' 
Bank,  19  Pick.  (Mass.)  532,535;  Commonwealth  r.  Chandjre,  4  Dall.  143; 
Brudenell  v.  Vaux,  2  Id.  302  ;  Moore  v.  Houston,  3  S.  &  R.  (Pa.)  169 ;  Payne 
V.  Wallace,  2  A.  K.  Marsh.  (Ky.)  244;  Gross  v.  Fowler,  21  Cal.  392. 

631 


*334  DETERMINATION   OF   TENANCY.  [Cn.  VIII.  S.  7. 

to  quit  at  three  montlis'  notice,"  he  will  be  deemed  a  quar- 
terly tenant,  and  the  notice  to  quit  must  exj^ire  with  some 
quarter,  and  not  at  any  other  part  of  the  year  (5').  Where 
premises  are  let  at  so  much  per  quarter  (not  sajdng  for  what 
period),  that  creates  a  quarterly  tenancy,  and  not  a  yearly 
tenancy  at  a  rent  payable  quarterly  (r).  So  where  premises 
are  let  not  for  any  definite  period,  but  the  tenant  is  to  give 
up  possession  at  any  time  on  one  month's  notice,  that  creates 
a  tenancy  from  month  to  month  (s).  But  where  premises 
are  let  for  an  indefinite  period,  at  a  yearly  rent,  payable 
weekl}',  with  power  to  determine  the  tenancy  at  three 
months'  notice  from  any  quarter  day,  that  creates  a  yearly 
tenancy,  determinable  at  the  end  of  any  quarter  ()*). 
[*334]  The  parties  to  a  demise  may  *  expressly  stipulate 
that  ill  a  certain  event  the  tenant  may  quit  without 
any  notice  (w).  An  agreement  for  a  weekly  tenancy  of  a 
house  determinable  by  a  week's  notice,  accompanied  by  a 
memorandum  that  the  tenant  might  have  the  house  until 
the  landlord  required  it  for  the  purpose  of  pulling  it  down, 
has  been  held  to  be  terminable  by  a  week's  notice,  although 
the  landlord  did  not  require  the  house  for  the  purpose  of 
pulling  it  down  (a;). 

Effect  of  insufficient  notice.  —  An  insufficient  notice  to  quit 
given  by  the  tenant  and  assented  to  by  the  landlord  will  not 
determine  the  tenancy,  unless  the  assent  be  communicated  to 
the  tenant,  nor  operate  as  a  surrender  on  the  expiration  of 
such  notice  (?/).  A  tenancy  from  year  to  year  created  by 
parol  is  not  determined  by  a  parol  licence  from  the  landlord 
to  quit  in  the  middle  of  a  quarter,  and  the  tenant  quitting 

(7)  Kemp  V.  Derrctt,  3  Camp.  510.  (u)  Retlu-ll  r.  Rlencowe,  .3  M.  &  G. 

(r)  Wilkinson   ;;.    lliiil,  3  IJing.  N.  110;   Cole  Ejfc.  ;51,  30. 
C.  508.  (r)   Ciiosiiiro   Linos   Committee   v. 

(s)  Doe  d.  Lansdell   v.  Gowcr,    17  Lewi.s,  50  L.  J.,  Q.  B.  120;  44  L.  T. 

Q.  B.  580.  293,  C.  A. 

(/)  Kex    V.   Inhbts.    of    Ilerstmon-  (//)    Doe    r/.    Iludlestono    v.   Jolin- 

ccaux,  7  B.  &  C.  551;   Overseers  of  stone,  1  M'Ciel.  &  Y.  141  ;  .rolinstonc 

Wilic-den,    app.,   Overseers    of    Pad-  r.  Hudlcstono,  4  B.  &  C.  022 ;   Doe  d. 

dington,  resp.,  3  B.  &  S.  503;  Guar-  Murrell  v.  Mil  ward,  .'5  M.  &  W.  .328; 

dians  of  Hastings  Union  r.  Guardians  Bcsscll  r.  Landsberg,  7  Q.  B.  638. 
of  St.  .James,  Clerkenwell,  35  L.  .1., 
M.  C.  G5. 

532 


Cn.  VIII.  S.  7.]  NOTICE  TO   QUIT.  *335 

the  premises  accordingly,  without  the  hmdlord  taking  posses- 
sion (2).  An  agreement  for  a  new  lease  upon  different 
terms  (not  amounting  to  an  actual  demise)  will  not  be  suf- 
ficient, without  a  notice  to  quit,  to  determine  a  previous 
yearly  tenancy  (a). 

Effect  of  sufficient  notice.  —  Upon  the  expiration  of  a  notice 
to  quit  duly  given  by  either  party  the  tenancy  ceases^  and, 
unless  a  fresh  tenancy  be  afterwards  created,  the  landlord 
cannot  distrain  for  subsequent  rent,  notwithstanding  tlie  ten- 
ant continues  in  possession  for  a  year  or  more  after  the 
expiration  of  the  notice  (5).  The  remedy  in  such  case  is 
by  action  for  use  and  occupation  (c),  or  for  double  value  or 
double  rent  (c?). 

(b)  When  necessary. 

Notice  necessary.  —  A  notice  to  quit  is  necessary  —  1. 
Where  there  is  some  express  stipulation  on  the  subject.  2. 
By  local  custom.     3.    By  the  common  law. 

Express  stipulations.  —  Where  there  is  any  express  stipula- 
tion as  to  the  notice  to  be  given  by  either  party  to  determine 
the  .tenancy,  such  notice,  whether  more  or  less  than  that 
usually  required  by  law,  must  be  given  and  will  be  suf- 
ficient (e).  But  less  than  the  stipulated  notice  will  be 
bad  (/).  Where  a  six  "months'"  notice  on  either  side 
is  to  be  given,  it  seems  that  a  six  lunar  ^  months'  notice  is 
sufficient  (^). 

*  Local  custom.  —  Where  there  is  a  special  local  [*335] 
custom  regulating  the  notice  to  be  given  to  deter- 
mine the  tenancy,  and  there  is  no  express  stipulation  on  the 
subject,  such  custom  will  be  deemed  part  of  the  contract  as 
an  implied  term  or  condition  thereof,  and  notice  to  quit  must 

(2)  Mollett  V.  Brayne,  2  Camp.  103.  (<>)  Doc  d.  Green  v.  Baker,  8  Taunt. 

(n)  John   V.  Jenkins,   1   Cr.   &  M.  281 ;  Doe  (/.  Robinson  v.  Dobell,  1  Q. 

227  ;  Jones  v.  Reynolds,  1  Q.  B.  506.  B.  806;  Cole  Ejec.  31,  32. 

(?))  Alford   V.  Vickery,  Car.   &  M.  (/•)  Doe  d.  Peacock  v.  Raffan,  6 

280.  Esp.  4. 

(c)  Chap.  'XlY.,post,  (g)  Rogers  v.  Kingston-upon-HuU 

{d)  Chap.  XX.,  post.  Dock  Co.,  34  L.  J.,  Ch.  165. 

1  Calendar  months  in  the  United  States.     See  note,  ante,  (a). 

633 


*335  DETERMINATION   OF   TENANCY.         [Ch.  VIII.  S.  7. 

be  given  accordingly  (7t).  The  custom  of  the  country  is  not 
admissible  to  prove  that  a  notice  to  quit  served  on  the  3rd  of 
April  is  a  good  notice  to  quit  by  reason  of  the  tenancy  being 
a  Michaelmas  tenancy,  but  it  must  be  proved  by  direct  evi- 
dence that  such  is  the  case  (Q. 

Notice  at  common  law.  —  Where  a  tenancy  from  jear  to 
year  is  created  by  express  agreement,  and  there  is  no  special 
stipulation  or  local  custom  providing  for  the  determination 
of  the  tenancy,  the  usual  notice  to  quit  required  by  law,  i.e. 
half-a-year's  notice  to  quit  at  the  end  of  the  first  or  some 
other  year  of  the  tenancy,  must  be  given  (^).^  The  same 
rule  applies  where  a  tenancy  from  year  to  year  is  iinplied  hy 
law  from  the  payment  and  acceptance  of  rent,  or  from  other 
circumstances  (Z),  as  where  a  person  enters  under  a  void 
lease  (n).  Similarly,  where  a  tenant  for  a  term  of  years 
holds  over  and  continues  to  pay  rent  as  before,  which  the 
landlord  accepts  (o)  ;  or  where  a  lease  becomes  void  upon  the 
death  of  the  lessor  (a  tenant  for  life),  and  the  remainderman 

(/i)  Tyler  v.  Seed,  Skin.  649;  Roe  (/)  Doe  d.  Wawa  v.  Horn,  3  M.  & 

d.  Henderson  v.  Charnock,  I'eake,  0.  W.  333 ;  Doe  d.  Cater  v.  Somerville, 

As  to  proof  of  custom,  see  Doe  d.  G  B.  &  C.  126,  132. 

Brown  v.  Wilkinson,  Co.  Lit.  270  b,  (x)  Doe  v.  Bell,  5  T.  R.  471.     See 

note  (228).  ante,  221.      As  tq  whether  an  entry 

(/)  Hogg  V.  Norris,  2  F.  &  F.  246.  under  an  agreement  for  a  lease  con- 

(k)  Parker  d.  Walker  v.  Constable,  stitutes  a  tenancy  from  year  to  j-ear 

3  Wils.  2.5;  Right  d.  Flower?-.  Darby,  only,  or  gives  a  title  to  the  lease,  see 
1  T.  R.  159 ;  Doe  d.  Shaw  i'.  Porter,  3  Walsh  v.  Lonsdale,  21  Ch.  D.  9,  and 
T.    R.  13;    Doe  d.  Martin  v.  Watts,  p.  86,  ante. 

7  T.  R.  85;  Doe  d.  Pitcher  v.  Dono-  (o)  Hyatt  v.  Griffiths,  17  Q.  B.  570. 

van,  1  Taunt.  555  ;  Goode  v.  Howell,       See  ante,  222. 

4  M.  &  W.  198;  Smith  L.   &  T.  24, 
319  (2nd  ed.). 

1  Tenancies ;  in  what  part  of  year  determinable.  —  In  some  states 
there  arc  si)C(:iiil  statutory  i>r()visioiis  fi.\ing7/(e  time  of  i/ car  at  wiiich  tenancies 
not  otlicrwise  limited  can  he  terminated. 

In  Iowa  tenancies  may  be  terminated  March  1,  except  tenancies  on  shares 
and  cropping  contracts,  which  expire  at  harvest,  or  not  later  than  December 
1  (Rev.  Code,  sec.  201.'))  ;  in  Kansas  farming  tenancies  may  be  terminated 
Marcli  1  (Com.  Laws,  sec.  .3209)  ;  in  New  York  City  tenancies,  not  otlierwise 
agreed,  terminate  May  1  {'■)  Rev.  Sts.  Part  2,  Tit.  4,  sec.  1)  ;  in  New  Jersey 
tenancies  for  indefinite  periods,  witli  monthly  rent,  so  long  as  the  rent  is  ])aid 
cannot  be  terminated  by  tiie  landlonl  until  April  1  (.Act  of  April  14,  lb84)  ; 
in  Quebec  tenancies  {without  lease)  of  houses  terminate  May  1,  and  of  rural 
estates  October  1  (Civil  Code,  sec.  1657). 

534 


Cii.  VIII.  S.  7.]  NOTICE   TO   QUIT.  *336 

accepts  subsequent  rent,  whereby  a  new  implied  tenancy  is 
created  (p) ;  any  such  new  tenancy  will  be  deemed  to  have 
commenced  from  the  same  day  of  the  year  as  the  original 
term,  and  the  notice  to  quit  should  be  given  accordingly  (  q). 
Time  of  day  for  quitting.  —  The  tenant  is  entitled  to  retain 
possession  till  midiiight  of  the  same  day  of  the  year  on  which 
the  tenancy  commenced;  a  notice  to  quit  at  noon  of  such 
day  is  bad  (/•). 

Notice  under  Agricultural  Holdings  Act.  —  The  common  law 
rule,  that  in  all  cases  of  yearly  tenancies,  the  tenant  i.'^ 
entitled  to  half-a-year's  notice  expiring  at  that  period  of  the 
year  at  which  the  tenancy  commenced,  is  altered  in  favour 
of  tenants  of  agricultural  or  pastoral  holdings  or 
market  gardens  (s)  by  the  *  33rd  section  of  the  Agri-  [*336] 
cultural  Holdings  Act,  1883  (^),  which  doubles  the 
length  of  notice  required.  This  section  enacts :  —  "  Where  a 
half-year's  notice,  expiring  with  a  year  of  tenancy,  is  by  law 
necessary  and  sufficient  for  determination  of  a  tenancy  from 
year  to  year,  in  the  case  of  any  such  tenancy  under  a  con- 
tract of  tenancy  made  either  before  or  after  the  commence- 
ment of  the  act,  a  year's  notice  so  expiring  shall  by  virtue  of 
this  act  be  necessary  and  suiiicient  for  the  same,  unless  the 
landlord  and  tenant  of  the  holdino-  bv  writing'  under  their 
hands,  agree  that  this  section  shall  not  apply,  in  which  case 
a  half-year's  notice  shall  continue  to  be  sufficient ;  but  noth- 
ing in  this  section  shall  extend  to  a  case  where  the  tenant  is 
adjudged  bankrupt,  or  has  filed  a  petition  for  a  composition 
or  arrangement  with  his  creditors."  This  section  applies 
only  to  the  common  case  where  a  half-year's  notice  is  neces- 
sary b}^  implication  of  law  (^^),  and  has  no  application  to  the 
case  where  a  half-year's  notice,  much  less  where  six  months' 


(/))  Doe  V.  Watts,  2  Esp.  501  ;  7  T.  (s)  For   exact   application   of   the 

R.  83.     See  ante,  22-3.  Act,  see  p.  337,  post. 

(7)  Doe  d.  Jordan  r.  Ward,  1   H.  (/)   46  &  47  Vict.  c.  01.     See  this 

Blac.  96;  Doe  d.  Collins  ;■.  Weller,  7  act   set   out  at  length  Appendix  A., 

T.  R.  478 ;  Humphreys  t- .  Franks,  18  post. 

C.  B.  323.  („)  See  Right  d.  Flower  r.  Darby, 

(?)  Page  V.  More,  15  Q.  B.  G84.  1  T.  R.    159,   and   the   other   cases, 

ante   (Jc^, 

635 


*337  DETERMINATION    OF   TENANCY.         [Ch.  VIII.  S.  7. 

notice  (a),  is  expressly  stipulated  for  (^).  Such  is  the  effect 
of  Wilkinson  v.  Calvert,  decided  upon  precisely  similar  words 
in  s.  51  of  the  repealed  Agricultural  Holdings  Act,  1875,  and 
of  Barlow  v.  Teal  (z)^  decided  upon  s.  38  of  the  Act  1883  in 
a  case  where  the  stipulation  in  a  contract  of  tenancy  made 
in  1871,  was  "  to  hold  from  year  to  year,  until  six  months' 
notice  is  given  in  the  usual  way ; "  and  in  Barlow  v.  Teal  all 
the  members  of  the  Court  of  Appeal  intimated  that  (as  it 
was  put  by  Brett,  M.  R.),  section  33  "•  applies  where  there  is 
no  express  stipulation  as  to  the  termination  of  the  tenancy, 
and  does  not  apply  where  there  is  au  express  stipulation." 

Notice  to  quit  part  of  holding.  —  The  41st  section  of  the  same 
act  provides  that  on  a  tenancy  from  year  to  year  a  notice  to 
quit,  which  relates  to  part  only  of  the  holding,  and  would 
therefore  be  wholly  bad  at  common  law  (a),  shall  be  good 
as  to  such  part  if  given  with  a  view  to  the  use  of  land  for 
the  erection  of  labourers'  cottages,  the  providing  of  gardens 
for  labourers,  the  planting  of  trees,  the  working  of  coal, 
"the  obtaining  of  brick  earth,  gravel  or  sand,"  the  making 
of  a  watercourse  or  road,  or  other  purposes  therein  enumer- 
ated, the  tenant  to  be  entitled  to  a  proportionate  reduction 
of  rent.  The  notice  must  "so  state,"  i.e.  must  state  its  pur- 
pose. The  same  section  provides  that  "the  tenant  shall 
further  be  entitled  at  any  time  within  twenty-eujlit  days  after 
service  of  the  notice  to  quit,  to  serve  on  the  landlord  a 
notice  in  writing  to  the  effect  that  he  (the  tenant)  accepts 
the  same  as  a  notice  to  quit  the   entire   holding,  to  take 

effect  at  the  expiration  of  the  then  current  year  of 
[*337]   *  tenancy ;  and  the  notice  to  quit  shall  have  effect 

accordingl3\"  This  last  provision,  which  it  is  purely 
optional  with  the  tenant  to  avail  liiniself  of,  seems  intended 
to  give  him  the  benefit  of  giving  up  the  part  of  the  holding 
to  which  the  notice  applies  sooner  than  he  would  be  entitled 
to  do  in   the  ordinary  course  of  things  ;  for  if  the  tenant 

(x)  Wilkinson  v.  Calvert,  L.  R.,  3  D.  501,  54  L.  J.,  Q.  R.  5(54  ;  ?,\  W.  R. 

C.  V.  1).  300  ;  47  L.  J.,  C.  P.  <i7!) ;  38  54  C.  A.     It  will  be  olisi-rvcd  that  the 

L.  T.  813;  20  W.  R.  829,  per   Lord  fxi)ri'ss   stiijulation    need    not    be    in 

Coleridf^e,  C.  J.  writing. 

(y)  See  Id.  ((«)    Hoe    d.    Rodd    v.    Archer,    14 

{z)  Barlow  v.  Teal,  L.  R.,  15  Q.  B.  Kast,  244. 

53G 


Cii.  VIII.  S.  7.]  NOTICE   TO   QUIT.  *337 

should  not  avail  himself  of  the  provision  the  notice  will  be 
a  "  year's  notice,  expiring  with  a  year  of  tenancy  "  (in  ac- 
cordance with  sect.  3o),  and  not  with  the  "  current  year." 

Application  of  Agricultural  Holdings  Act.  —  Tlie  iVgricul- 
tural  Holdings  Act,  1883,  4G  &  47  Vict.  c.  61,  by  ss.  54  and  61 
applies  to  the  following  and  no  other  holdings :  — 

'•'■  Holdings,  either  wholly  agricultural  or  wholly  yaatoral,  or 
partly  agricultural  and  partly  pastoral,  or  wholly  or  partly 
cultivated  as  market  gardens,  held  under  a  landlord  for  a  term 
of  years  or  for  lives,  or  for  lives  and  years,  or  from  year  to 
year,  by  a  tenant  holding  no  employment  under  such  landlord.'' 

Service  of  notice  under  Agricultural  Holdings  Act.  —  It  is 
enacted  by  s.  28  of  the  Agricultural  Holdings  Act,  that 
"any  notice  under  this  act"  may  be  served  by  registered 
letter  through  the  post ;  but  it  is  submitted  that  a  notice  to 
quit  is  not  a  notice  under  the  act,  and  that  s.  33  merely 
lengthens  the  notice  required  at  common  law  (6). 

"What  tenancies   are   determinable   at  end   of  first  year.  —  A 

tenancy  ''  from  year  to  year  so  long  as  both  parties  please  " 
is  determinable  at  the  end  of  the  first,  as  well  as  of  any  sub- 
sequent year,  unless  in  creating  such  tenancy  the  parties  use 
words  showing  that  they  contemplate  a  tenancy  for  two 
years  at  least  (c).  But  where  a  tenancy  is  created  for  "one 
year  certain,  and  so  on  from  year  to  year  "  (which  is  often 
done  by  mistake),  it  enures  as  a  tenancy  for  two  years  at 
the  least,  and  cannot  be  determined  by  notice  to  quit  at  the 
end  of  the  first  year  (<i)  ;  but  it  may  be  determined  by  due 
notice  to  quit  at  the  end  of  the  second  or  any  su])sequent 
year  of  the  tenancy.  A  tenancy  "  for  twelve  months  certain 
and  six  months'  notice  afterwards  "  may  be  determined  by 
notice  to  quit  at  the  end  of  the  first  year  (e)  :  but  a  demise 
"not  for  one  year  only,  but  from  year  to  year,"  has  been 

(6)  See  the  act, /ws^  Appendix,  and  10  Q.   B.  473;    Smith  L.    &  T.  323 

for  one  instance  out  of  many  of  a  (2nd  ed.). 

notice  "  under  the  act"  see  s.  7.     A  (d)  Doe  d.  Chadborn  v.  Green,  9 

contrary  o])inion  to  that  in  the  text  is  A.  &  E.  658.                          , 

given  in  Hoscoe  on  Evidence,  ed.  14.  (e)  Thompsons.  Maberloj',  2  Camp. 

(c)  Doe   c/.  Clarke  v.  Smaridge,  7  573;  Brown  v.  Symons,  8  C.  B.,  N.  S. 

Q.  B.  957  ;  Doe  d.  Plumer  v.  Nainby,  208;  29  L.  J.,  C.  P.  251. 

537 


*o38  DETER]\UXATION   OF   TENANCY.         [Ch.  VIII.  S.  7. 

held  to  constitute  a  demise  for  two  years  at  least  (/).  A 
tenancy  for  six  months,  and  so  on  from  six  months  to  six 
months  until  determined  by  either  party,  is  a  tenancy  for 
one  year  at  least  (^).     So  a  lease  for  three  years,  and  so  on 

from  three  years  to  three  years,  makes  one  term  for 
[*338]  six  years  (A).     Such  tenanc}-  maybe  *  determined  by 

a  half-year's  notice  to  quit  expiring  at  the  end  of  the 
first  six  years,  or  of  any  subsequent  period  of  three  years, 
but  not  at  any  other  time  («').  A  demise  for  a  "term  of 
three  years  determinable  on  a  six  months'  previous  notice  to 
quit,  otherwise  to  continue  from  year  to  year  until  the  term 
shall  cease  by  notice  to  quit  at  the  usual  times,"  is  a  demise 
for  three  years  certain,  determinable  only  at  the  end  of  that 
period  by  six  months'  previous  notice ;  and  if  not  then  de- 
termined, a  subsisting  tenancy  from  year  to  year.  Such  a 
demise  cannot  be  determined  by  a  notice  to  quit  at  the  end 
of  the  first  or  second  of  the  three  years  (/<?). 

By  husband.  —  Prior  to  the  jN'Iarried  Women's  Property 
Act  it  was  held  that  a  husband  could  not  maintain  ejectment 
for  his  wife's  lands,  let  from  year  to  year  with  his  express  or 
implied  assent,  without  first  giving  due  notice  to  quit  (/). 
The  effect  of  that  act  would  seem  to  be  that  the  notice  to 
quit  need  be  given  in  the  wife's  name  only. 

By  infant.  —  An  infant  must  give  the  same  notice  to  quit 
as  if  he  were  of  full  age  (m). 

After  death  or  assignment.  —  A  notice  to  quit  is  not  ren- 
dered unnecessaiy  by  the  death  of  the  landlord  (o),  or  of 
the  tenant  (jo),  nor  by  an  assignment  of  the  term  (g^),  or  of 

(/)  Dean  t/.  Jacklin  i\  Cartwright,  (m)  Maddon  d.  Baker  v.  White,  2 

4  East,  ni.  T.  II.  160;    Doe  d.  Miller  v.  Nodon, 

(r/)  Reg.  V.  Chawton,  1  Q.  B.  247.  2  Esp.  530. 

(/i)  Henningsi;.  Brabason,2Lov.45.  (o)  Maddon  </.  Baker  v.  White,  2 

(0  Cole  Ejec.  .36;  Roe  d.  Bree  v.  T.  R.  160. 

Lees,  2  W.  Blac.  1171;  Ilennings  v.  (]>)  Doe  d.  Shore  v.  Porter,  .3  T.  R. 

Brahason,  2  Lev.  45 ;  Jones  y.  Nixon,  1'5;  Doe  d.  Hull  v.  Wood,  14  M.   & 

1  H.  &  C.  48.  W.    (!H2  ;    Maekay    ?•.    Mackreth,    4 

C^•)  Jones  V.  Nixon,  1  H.  &  C.  48;  Doug.  21.1;  15  Ves.  241  ;  Gulliver  d. 

31  L.  J.,  Ex.  505 ;  Brown  v.  Trumpcr,  Tusker  r.  Burr,  1  W.  Blac.  50(5. 

26  Beav.  11.  (r/)  Doe  d.  Castleton  v.  Samuel,  5 

(I)   Doe    d.    Leicester  v.   Biggs,   1  Esj).  173. 
Taunt.  ;Jt;7;  2  Id.  109. 

588 


Cii.  VIII.  S.  7.]  NOTICE   TO  QUIT.  *339 

the  reversion  (r).  But  in  all  such  cases  notice  to  quit  should 
be  given  by  or  to  tlie  person  or  persons  for  the  time  being 
legally  entitled  to  the  term,  or  to  the  reversion,  as  the  case 
may  be  (s). 

Subsequent  reversioners.  —  Where  notice  to  quit  is  duly 
given  by  the  landlord,  or  other  person  for  the  time  being 
legally  entitled  to  the  reversion,  and  he  afterwards  assigns 
his  reversion,  the  assignee  may  avail  himself  of  the  notice  (t}. 
So  the  churchwardens  and  overseers  of  a  parish  may  avail 
themselves  of  a  notice  to  quit  duly  given  by  their  predeces- 
sors (w). 

Notice  by  tenant  binds  assignee.  —  A  proper  notice  to  quit 
given  to  the  tenant  or  his  assignee  will  operate  against  any 
subsequent  assignee  (.r). 

(c)  When  unnecessary/.^ 

Demise  for  specific  term.  —  Where   the    demise   or  agree- 
ment specifies  the  term  or  event  upon  which  the  tenancy 
is  to  determine,  no  notice  to  quit  is  necessary  (^)  ;  ^ 
*  as  where   the   demise  is  for  one  year  (2:) :  ^  or  for  [*339] 

(r)  Birch  v.  Wright,  1  T.  R.  378;  (x)  Doe  d.  Castleton  v.  Samuel,  5 

Burrows  v.  Gradin,  1   D.  &  L.  213,  Esp.  173. 

218.  (//)  Rio-ht  d.  Flower  v.  Darby,  1  T. 

(s)  Cole  Ejec.  35.  R.  162;   Id.  54. 

(t)   Doe   d.   Earl  of  Egremont   v.  (z)   Cobb  v.   Stokes,  8  East,  358, 

Forwood,  3  Q.  B.  627.  361  ;  Johnstone  v.  Huddlestone,  4  B. 

(u)"boe  d.  Higgs  i'.  Terry,  4.  A.  &  &  C.  937  ;  Strickland  v.  Maxwell,  2 

E.  274  ;  Doe  d.  Hobbs  v.  Cockell,  Id.  Cr.  &  M.  539. 
478. 

1  For  some  of  the  many  ways  of  terminating  tenancies  at  will,  beside  notice, 
see  ante,  sec.  1,  notes. 

-  Complex  tenancies.  —  A  tenancy  from  year  to  year  may  be  made  to 
expire  without  notice  at  end  of  a  term.  Doe  d.  Parkinson  v.  Haubtman, 
Bert.  (N.  B.)  645  ;  Caverhill  v.  Orvis,  12  C.  P.  U.  C.  392 ;  Secor  v.  Pestana, 
37  111.  525;  and  so  may  a  tenancy  at  will  at  end  of  a  definite  period  (])er 
Morton,  J.,  in  Davis  v.  Murphy,  126  Mass.  148,  144,  and  Shaw,  C.  J.,  in  Elliott 
V.  Stone,  1  Gray  (Mass.)  571,  574.  See  oiite,  sec.  1,  notes).  For  instance,  a 
parol  lease  for  a  week  or  a  month  in  Massachusetts  (tiiough  by  statute  a  ten- 
ancy at  will)  expires  without  notice  at  the  end  of  the  period.  In  Maine  (by 
Rev.  Sts.  ch.  94,  see.  2)  it  is  otherwise.  It  is  believed  such  tenancies  for 
fixed  periods  generally,  in  the  states  and  provinces,  expire  without  notice. 

3  Logan  V.  Herron,  8  S.  &  R.  (Pa.)  459 ;  McCanna  v.  .Johnston,  19  Pa.  St. 
434 ;  or  for  a  month,  Gibbons  v.  Dayton,  4  Hun  (N.  Y.)  451 ;  Neumeister  v. 
Palmer,  8  Mo.  App.  491  ;  or  for  days,  McCarthy  v.  Yale,  39  Cal.  586 ;  or  to  a 
day  certain,  Evans  v.  Hastings,  9  Pa.  St.  273  (per  Coulter,  J.). 

539 


*339  DETERMINATION   OF    TENANCY.  [Ch.  VIII.  S.  7. 

any  certain  number  of  years  (a) :  ^  or  till  a  particular 
day  (6). 

Agreement  for  lease  for  specific  term.  —  Similarly,  if  a  ten- 
ant enter  under  an  agreement  for  a  lease  for  seven  years, 
which  lease  is  never  executed,  at  the  end  of  the  seven  years 
the  tenancy  from  year  to  year,  created  by  the  payment  and 
acceptance  of  rent  during  that  period,  determines  without 
any  notice  to  quit  (c).  But  if  there  be  an  agreement  for  a 
lease  of  tAventy-one  years,  determinable  at  the  end  of  the 
first  seven  or  fourteen  years,  the  tenant  cannot  quit  at  the 
end  of  ths  first  seven  years  without  giving  any  notice  ((7). 

When  term  limited.  —  If  a  term  is  granted  which  in  the 
lease  is  limited  by  the  happening  of  a  certain  event,  the 
term  will  end  on  the  happening  of  the  event  without  any 
notice  to  quit  being  required.^  Thus  where  there  is  a  lease 
or  agreement  for  a  lease  "  during  the  joint  lives  of  A.  and 
B. ; "  upon  the  death  of  either  of  them  the  term  determines 
without  any  notice  to  quit  (e)  ;  and  where  a  house  or  part  of 
a  house  is  occupied  by  one  of  several  partners  "  during  the 
continuance  of  the  partnership  ;  "  upon  a  dissolution  thereof 
he  may  be  ejected  without  any  notice  to  quit  (/).  So  where 
premises  are  occupied  by  a  servant  and  his  family  as  part  of 
the  remuneration  for  his  services,  whenever  such  service  is 
determined,  an  ejectment  may  be  maintained  against  the 
servant  without  notice  to  quit  (^).     And  where  an  intended 

(«)  Messenger  v.  Armstrong,  1  T.  (d)   Chapman   r.  Towner,  6  M.  & 

"R.  54;  Doe    d.    Godsell   v.   Inglis,    3  W.  100;  and  sec  Brown  y.  Trumper, 

Taunt.  54  ;  Roberts  v.  Hay  ward,  3  C.  2G  Beav.  11. 
&  P.  432.  (e)  Doe  d.  Brom field   v.   Smith,  6 

(b)  Doe    d.    Leeson    v.    Saver,    3  East,  530. 

Camp.  8.  ( /')  Doe  d.  Waitliman   v.  Miles,  1 

(c)  Doe  d.  Tilt  v.  Stratton,  3  C.  &  Stark.  181  ;  Doe  d.  Colnaghi  v.  Bluck, 
P.  1()4 ;  4  Bing.  44();  Berrey  i;.  Lind-       8  C.  &  P.  404. 

ley,  3  M.  &  G.  4!)8,  514 ;  Doe  d.  Dav-  (;/)  Doe  d.  Hughes  v.  Corbett,  9  C. 

enish  v.  Moffatt,  15  Q.  B.  257,  205  ;       &  P.  4'J4. 
Tress  v.  Savage,  4  E.  &  B.  30. 

1  Jackson  v.  Parkhurst,  5  Johns.  128;  Jackson  v.  M'Leod,  12  Id.  182; 
Haiixiiurst  v.  Somers,  38  (^al.  503  ;  MacGregor  v.  Rawle,  57  Pa.  St.  184. 

2  See  <inle,  sec.  2,  note,  and  cases  there  cited  ;  also  sec.  1,  note  2,  and  cases 
there  cited  of  conditional  limitations  of  tenancies  at  will.  It  seems  that  both 
tenancies  from  year  to  year  and  at  will  may  be  limited  to  expire  at  a  fixed 
date,  if  not  terminated  earlier  bv  notice  to  (]iiit. 

540 


Ch.  VIII.  S.  7.]  NOTICE   TO   QUIT.  *339 

purchaser  is  let  into  possession  until  a  given  day  on  terms 
the  same  rule  will  apply  (Ji). 

Where  notice  to  quit  is  dispensed  with.  —  It  may  be  ex- 
pressly stipulated  tliat  the  tenant  may  quit  tvithout  notice,  at 
any  time,  upon  the  happening  or  discovery  of  a  particular 
event  or  fact  (which  happens),  ex.  gr.  "if  he  tinds  anything 
that  may  at  all  lead  him  to  suspect  that  there  is  any  embar- 
rassment in  his  landlord  "  (t). 

Monthly  or  weekly  tenancy.  —  Where  the  tenancy  is  other- 
wise than  yearly,  and  there  is  no  local  custom  or  special  stip- 
ulation as  to  notice,  it  is  very  doubtful  what  notice  to  quit  is 
necessary,^     A  notice  corresponding  with  the  period  of  ten- 

{h)  Doe    d.   Leeson    v.    Sayer,    3       der,  1  Stark.  308;  Right  d.   Lewis  i'. 
Camp.  8  ;  Doe  d.  Parker  v.  Boulton,       Beard,  13  East,  210. 
H  M.  &  S.  148 ;  Doe  d.  Moore  v.  Law-  ((')  Bethell  v.  Blencowe,  3  M.  &  G. 

119. 

1  The  shorter  tenancies.  —  (a)  Notice  to  terminate.  —  Tenancies  for  tlie 
sliorter  Jixed  periods  (week,  month,  quarter,  &c.)  terminate,  like  terms  for 
years,  without  notice.  In  fact  (though  fractional)  thoy  are  tenancies  for 
yeavs.     4  Kent's  Com.  sec.  85. 

(6)  Shorter  periodiad  tenanciea.  —  It  is  usually  held  at  common  law  in  Amer- 
ica that  a  notice  equal  to  the  intervals  between  rent  payments  is  sufficient  to 
terminate  them,  as  three  months  to  terminate  a  tenancy  from  quarter  to 
quarter,  Witt  (•.  Mayor  of  N.  Y.,  0  Rob.  441  ;  one  montli,  from  month  to  month, 
Anderson  u.  Pindle,  19  Wend.  (N.  Y.)  391;  23  Id.  61(3;  McDevitt  v.  Lam- 
bert, 80  Ala.  536 ;  Prickett  i".  Ritter,  16  III.  97  {per  Scates,  J.);  Huyser  v. 
Chase,  13  Mich.  98 ;  Woodrow  v.  Michael,  Id.  190 ;  Sanford  i'.  Harvey,  11 
Cush.  (Mass.)  93  ;  and  Walker  v.  Sharpe,  14  Allen  (Mass.)  43  (and  this  is  so 
by  statute  in  Mass.)  ;  Gunn  v.  Sinclair,  52  Mo.  327  ;  Gruenewald  v.  Schaales, 
17  Mo.  App.  324  (and  by  statute  in  Missouri)  ;  a  week,  from  week  to  week 
{per  Walworth,  Chan.,  in  Anderson  v.  Prindle,  23  Wend.  619). 

(c)  Statutory  notices  to  terminate  the  shorter  tenancies  and  tenancies  at  icill. — 
The  notices  are  very  frequently  fixed  at  the  intervals  between  rent  paj'mcnts, 
but  not  always,  and  there  is  a  great  variety  in  the  statutes. 

In  Nova  Scotia  (Rev.  Sts.  ch.  125),  New  Brunswick  (Con.  Sts.  ch.  83,  sec. 
10),  Quebec  (Civil  Code,  sec.  1657),  Ontario  (Rev.  Sts.  ch.  143,  sec.  15),  Mani- 
toba (Con.  Sts.  ch.  54,  sec.  8),  and  Delaware  (Laws  of  Delaware,  ch.  101, 
sec.  4),  tenancies  from  month  to  month  are  terminated  by  a  month's  notice 
and  from  week  to  week  by  a  week's  notice.  In  Quebec  tenancies  from  quar- 
ter to  quarter,  as  well  as  all  uncertain  verbal  and  presumed  leases,  are  termi- 
nated by  a  three  months'  notice. 

In  Massachusetts  (Pub.  Sts.  ch.  121,  sec.  12),  Michigan  (Statutes,  sec. 
5774),  and  Minnesota  (Sts.cli.  76,  sec.  40),  the  notice  to  terminate  a  tenancy 
at  will  is  three  months,  but  if  the  rent  is  payable  oftener  than  that  the  notice 
will  be  sufficient  if  equal  to  the  intervals;  and,  in  case  of  non-payment  of 
rent,  fourteen  days'  notice  is  sufficient. 

541 


*339  DETERMINATION   OF   TENANCY.        [Ch.  VIII.  S.  7. 

ancy,  ex.  gr.  a  week's  notice  in  case  of  a  weekly  tenancy,  is 
clearly  sufficient  (Z:),  but  whether  it  is  necessary  is  not  set- 

(Jc)  See  Doe  d.  Peacock  v.  Eaffan,  6  Esp.  4. 

In  Iowa  (Rev.  Code,  sec.  2015),  Kansas  (Compiled  Laws,  sec.  3207),  and 
Maine  (Rev.  Sts.  ch.  9i,  sec.  2),  notice  to  terminate  a  tenancy'  at  will  is  thirty 
days.  In  Iowa  and  Kansas,  if  the  intervals  are  less  than  thirty  days,  the 
notice  will  be  sufficient  if  it  equal  them. 

In  New  York  (3  Rev.  Sts.  Part  2,  Tit.  4,  sec.  7),  Maryland  (Rev.  Code, 
Art.  67,  Subtitle  7,  sec.  1),  Indiana  (Rev.  Sts.  sec.  5207),  Kentucky  (Gen. 
Sts.  ch.  66,  Art.  6,  sec.  1),  Missouri  (Rev.  Sts.  ch.  45,  sec.  3077),  California 
(Civil  Code,  sec.  789),  and  Dakota  (Civil  Code,  sec.  239),  notice  in  case  of  a 
tenancy  at  will  is  one  month. 

In  Indiana  (Rev.  Sts.  sec.  5209),  if  the  periods  are  shorter  than  three 
months,  the  notice  will  be  sufficient  if  it  equal  them;  likewise  in  Wisconsin 
(Rev.  Sts.  sec.  2183),  if  they  are  less  than  a  month. 

In  Missouri  (Rev.  Sts.  sec.  3078)  all  tenancies  less  than  from  year  to  year 
may  be  terminated  by  a  month's  notice. 

In  New  York  City,  unless  otherwise  expressly  agreed,  rent  is  payable  quar- 
terly upon  all  leases,  and  they  expire  May  1  (3  R.  S.  Part  2,  Tit.  4,  sec.  1). 

In  Illinois  (Statutes,  ch.  80,  sec.  6)  thirty  days  is  required  to  terminate  a 
monthly  tenancy,  or  for  periods  less  than  a  year.  Seem  v.  McLees,  24  111.  192 ; 
Brownell  v.  Welch,  91  Id.  523  ;  though  it  is  still  considered  that  tenancies  at 
will  are  determined  without  notice,  Dunne  v.  Trustees  of  Schools,  39  111.  578  ; 
Herrell  v.  Sigeland,  81  Id.  457. 

In  Colorado  one  month's  notice  terminates  a  half-yearly,  and  ten  daj's  a 
monthly,  tenancy  (Gen.  Sts.  sec.  1504).  In  Georgia  two  months'  notice  from 
landlord,  or  one  month  from  tenant,  will  terminate  a  tenancy  at  will  (Code, 
sec.  2291). 

In  North  Carolina  notice  to  terminate  a  tenancy  from  month  to  month  is 
fourteen  days;  from  week  to  week,  two  days  (Code,  sec.  1750). 

In  Rhode  Island,  in  terms  less  than  year,  notice  is  one-half  the  term,  not 
exceeding  three  montlis  (Pub.  Sts.  ch.  232,  sec.  1). 

In  Mississippi  (Rev.  Code,  sec.  1330)  the  notice  to  terminate  half-yearly 
and  quarterly  tenancies  is  one  month  ;  to  terminate  monthly  or  weekly  ten- 
ancies, it  is  one  week. 

In  Oregon  the  notice  is  ten  days  in  all  cases  except  farming  tenancies,  and 
for  such  tenancies  it  is  ninety  days  (Law  of  Ore.  sec.  3520). 

In  Connecticut  parol  leases  reserving  monthly  rent  expire  without  notice 
at  end  of  month  (Gen.  Sts.  sec.  2967). 

In  New  Hampshire  (Gen.  Laws,  ch.  250,  sec.  2)  tliree  months'  notice  is  suf- 
ficient in  all  cases,  thirty  days  if  rent  is  payable  oftcner  than  once  in  three 
months,  and  seven  days  if  the  rent  is  in  arrears. 

In  Pennsylvania  proluthli/  a  notice  cqw.d  to  the  rent  intervals  would  bo 
sufficient  to  terminate  the  shorter  periodical  tenancies.  "The  Law  of  Land- 
lord and  Tenant  in  Pennsylvania"  (by  Jackson  and  Gross),  p.  213. 

The  editors  rely  upon  outside  decisions,  and  say  there  are  good  lawyers 
who  differ  from  them. 

Several  of  the  states  have  no  statutory  jjrovisions  for  terminating  either 
tenancies  at  will  f)r  tlu-  shorter  periodical  tinancies. 

Termination  of  notices. —  Notices  to  terminate  the  shorter  periodical  ten- 

542 


Cii.  VIII.  S.  7.]  NOTICE   TO   QUIT.  *340 

tied.  It  was  ruled  by  Parke,  B.,  at  nisi  priu;-;  (Z),  in 
an  action  for  use  and  occupation,  *that  the  well-  [*340] 
known  rule  that  a  yearly  tenancy  cannot  be  deter- 
mined without  a  half-a-year's  notice  "cannot  be  applied  to  a 
weekly  takhig,"  inasmuch  as  "  the  eifect  of  it  would  be  to 
show  that  half-a-week's  notice  was  necessary  to  put  an  end 
to  such  a  tenancy ; "  that  a  week's  notice  to  quit  is  not  im- 
plied as  part  of  the  contract  in  a  weekly  taking,  and  that  a 
tenant  who  quitted  on  the  same  day  of  the  week  on  which 
he  entered  was  not  bound  to  pay  rent  for  the  week  subse- 
quent. But  in  Jones  v.  Mills  (w),  the  Court  of  Common 
Pleas  held  that  a  tenancy  from  week  to  week  does  not  deter- 
mine without  some  7'easonahle  notice :  and  that  an  ejectment 
cannot  be  maintained  against  such  tenant  without  any  pre- 
vious notice.  Both  these  cases  being  decided  in  favour  of 
the  tenant,  they  are  not  so  conflicting  as  has  been  generally 
supposed.  On  the  whole,  the  law  appears  to  be  that,  in  the 
case  of  weekly  tenancies,  the  landlord  is  entitled  to  such 
reasonable  notice,  not  exceeding  a  week,  as  will  enable  him 
to  get  a  new  tenant,  and  the  tenant  to  such  reasonable 
notice,  not  exceeding  a  week,  as  will  give  him  a  reasonable 
time  to  remove  his  property  from  the  premises  (n). 

Tenant  may  stay  till  midnight.  —  After  notice  given  the 
tenant  appears  to  be  entitled  in  strict  law  to  stay  until  mid- 
7iujht  of  the  day  on  which  the  notice  expires,  at  whatever 
hour  of  the  day  the  tenancy  may  have  commenced,  or  the 
notice  may  have  been  given  ;  —  for  the  law  takes  no  account 
of  fractions  of  a  day.  This  seems  to  follow  from  the  author- 
ity (o)  in  which  a  notice  to  quit  at  noon  (of  the  proper  day) 
was  held  bad  in  the  case  of  a  tenancy  from  year  to  year ;  but 

(0  Huffell  V.  Armistoad,  7  C.  &  P.  (n)  See  per  Erie,  C.  J.,  in  Jones  v. 

56,  58.  Mills,    iibi   supra,    citing   Tliunder  <1. 

(m)  10  C.  B.,  N.  S.  788;  31  L.  J.,  Weaver  v.  Beiclier,  'A  East,  449. 
C.  P.  66.     "Williams,  J.,  thought  that  (o)  Page  v.  Moore,  15  Q.  B.  QQ. 

a  week's  notice,  and  Willcs,  J.,  that 
half-a-\veek's  notice,  was  necessary. 

ancies  must  terminate  at  the  end  of  the  rent  periods.  Gunn  v.  Sinclair,  52 
Mo.  327,  331;  Russell  v.  McCartney,  21  Mo.  App.  544,  547;  Woodrow  v. 
Michael,  13  Mich.  187,  190  ;  Sanford  y.  Harvey,  11  Cush.  (Mass.)  93;  Pres- 
cott  );.  Elm,  7  Id.  34(5;  Steward  v.  Harding,  2  Gray  (Mass.)  335;  Currier  v. 
Barker,  Id.  224 ;  Bay  State  Bank  v.  Kiley,  14  Gray  (Mass.)  492. 

543 


*341  DETERMINATION    OF   TENANCY.  [Ch.  VIII.  S.  7. 

a  custom  to  quit  at  a  more  convenient  time,  if  it  could  be 
proved  in  fact,  would  no  doubt  be  good  in  law. 

Proof  of  custom.  —  The  onus  of  proof  of  any  custom  (where 
a  custom  is  relied  on)  lies  on  the  party  asserting  its  exist- 
ence (j!?).  If  there  be  any  such  local  custom  or  special  stip- 
ulation, notice  to  quit  must  be  given  accordingly  ((^),  and 
such  notice  will  of  course  be  sufficient  (?'). 

Tenants  at  will.  —  A  notice  to  quit  is  unnecessary  to  deter- 
mine a  strict  tenancy  at  will  (s).^  But  such  tenancy  must 
be  duly  determined  by  a  "  demand  of  possession,"  or  by  entr}^ 
or  by  something  equivalent,  on  or  b'fore  the  date  of  the 
plaintiff's  alleged  title  in  an  ejectment  (f').  Implied  ten- 
ancies at  will  frequently  change  into  tenancies  from 
[*341]  year  to  year,  *  upon  payment  of  rent,  &c.  (m),  in 
which  case  the  usual  notice  to  quit  must  be  given. 

Tenants    on    sufferance.  —  A    tenant    on    sufferance    is  not 

(;0  Cole  Ejec.  33,  37.  d.   Hall  v.  Wood,   14  M.    &  W.  682 

{(])  Doe   d.   Peacock   v.   TJaffan,  6  (2nd  point)  ;    Doe    d.   Hollingswortli 

Esp.  4;  Doe  d.  Finlayson  r.  Bayley,  v.  Stennett,  2  Esp.  717. 

5  C.  &  P.  67.  (0  Goodtitle  d.   Galloway  ;;.   Her- 
()■)  Doe  d.  Parry  r.  Hazell,  1   Esp.  bert,  4  T.  K.  680;  Denn  d.  Brune  r. 

94  ;  Doe  d.  Campbell  v.  Scott,  6  Bing.  Rawlins,  10  East,  261  ;  Doe  d.  Jacobs 

362.  I'.   Phillips,   10   Q.   B.    130;    Doe   d. 

(s)  Doe  d.  Tomes  r.  Chamberlaine,  Nicbolls  r.  M'Kaeg,  10  B.  &  C.  721. 

6  M.  &  W.  14;  Doe  d.  Milburn  v.  (u)  Clayton  v.  Blakey,  8  T.  R.  3, 
Edgar,   2  Bing.   N.    C.   498;    Doe    d.  ante,  206. 

Jones  V.  Jones,  10  B    &  C.  718;  Doe 

1  Tenancy  at  will ;   notice  to  quit ;    w^hen   necessary.  —  A    formal 

notice  to  quit  is  not  neccssan'  to  determine  a  strict  tenancy  at  will  /)//  the  com- 
vion  law.  Jackson  v.  Bradt,  2  Caines  (N.  Y.)  lOi);  Jackson  v.  Rogers,  2 
Caines'  Cas.  (N.  Y.)  314,  318  ;  Rich  v.  Bolton,  46  Vt.  84  ;  Ellis  v.  Paige,  1 
Pick.  (Mass.)  43;  Curl  v.  Lowell,  19  Id.  25,  26,  27  (per  Wilde,  J.)  ;  Jackson 
V.  Bryan,  1  Jolins.  (N.  Y.)  322,  323  (per  Thompson,  J.)  ;  Phillips  v.  Covert,  7 
Id.  1,  4  (pel-  Kent,  C.  J.)  ;  Humphries  v.  Humpliries,  3  Ircd.  L.  (N.  C.)  362  ; 
Davis  V.  Thompson,  13  Me.  209  (per  Weston,  C.  J.)  ;  Moore  i-.  Boyd,  24  Me. 
242  ;  Withers  v.  Larrabee,  48  Id.  570,  571  (per  Appleton,  J.)  ;  Dunn^e  v.  Trus- 
tees, .39  111.  578;   Herrell  v.  Sizeland,  81  Id.  457. 

The  lessee,  however,  cannot  be  expelled  without  a  demand  of  possession 
and  reasonahle  time  allowed  him  to  remove  his  family  and  effects,  and  harvest 
his  croi)8.  Ellis  i-.  I'aige,  1  Pick.  (Mass.)  43;  Curl  r.  Lowell,  19  Id.  25,  26, 
27;  Moore  r.  Boyd,  24  Me.  242;  and  many  other  cases,  some  of  theni  cited 
supra. 

Statutory  notices  are  now  frc(iucntly  rcfjuired.  See  cMi/r,  note,  "  Shorter 
tenancies." 

For  many  other  ways,  beside  notice,  in  which  tenancies  at  will  may  be 
determined,  see  ante,  ch.  8,  sec.  1,  note,  "  i'ermination  of  tenancies  at  will." 

544 


Cu.  VIII.  S.  7.]  NOTICE   TO   QUIT.  *341 

entitled  to  any  notice  to  quit,  nor  even  to  a  demand  of  pos- 
session, before  an  ejectment  can  .be  maintained  against 
him  (.r).  But  such  tenancy  will  easily  change  into  a  tenancy 
at  will,  or  into  a  tenancy  from  year  to  year,  whereupon  a 
demand  of  possession,  or  a  regular  notice  to  quit,  will  become 
necessary  (^). 

Intruders.  —  If  a  man  get  into  possession  of  a  house  to  be 
let,  without  the  privity  of  the  landlord,  and  they  afterwards 
enter  into  negotiations  for  a  lease,  but  differ  upon  the  terms, 
the  landlord  may  maintain  ejectment  to  recover  possession 
of  the  premises  without  giving  any  notice  to  quit  (s).  But 
possession  should  be  demanded  before  action,  to  put  an  end 
to  any  implied  tenancy  at  will,  arising  from  the  negotia- 
tions (a). 

Mortgagors.  —  A  mortgagor  who  is  suffered  to  remain  in 
possession,  or  in  receipt  of  the  rents  and  profits  of  the  prop- 
erty mortgaged,  not  being  a  tenant  of  the  mortgagee,  but  in 
the  nature  of  a  bailiff  to  receive  the  rents,  and  thereout  pay 
the  interest,  and  keep  the  surplus  for  his  own  use  (5),  is  not 
entitled  to  any  notice  to  quit,  nor  even  to  a  demand  of  pos- 
session, before  ejectment  ((?). 

Tenants  of  mortgagor.  —  Tenants  from  year  to  j^ear  of  the 
mortgagor,  whose  tenancies  commenced  before  the  mortgage, 
are  entitled  to  the  usual  notice  to  quit  (d).  But  if  their 
tenancies  commenced  after  the  mortgage,  they  are  not 
entitled  to  any  notice  to  quit,  nor  even  to  a  demand  of 
possession  (e),  unless  a  new  tenancy  has  been  created  as 
between  the  mortgagee  and  the  tenant  (/). 

(x)  Doe  (/.  Moore  v.  Lawder,  1  Goodier,  10  Q.  B.  957 ;  Doe  d.  Gar- 
Stark,  n.  308;  Doe  d.  Leeson  v.  rod  v.  Olley,  12  A.  &  E.  481;  Cole 
Sayer,  3.  Camp.  8  ;  Doe  d.  Roby  v.  Ejec.  38,  462  ;  but  see  "West  v.  Eritche, 
Maisey,  8  B.  &  C.  767.                             .    3  Exch.  21G. 

{y)  Cole  Ejec.  38.  {d)  Doe  d.  Bowman   i'.  Lewis,   13 

{z)  Doe    d.    Knight    v.    Quigly,   2  M.  &  W.  241  ;  2  D.  &  L.  607. 
Camp.  505.  (e)  Keech  v.  Hall,  1  Doug.  21 ;   1 

(rt)  Cole  Eject.  58.  Smith  L.  C.  579 ;  Thunder  d.  Weaver 

{b)  Trent   v.    Hunt,   9    Exch.    14 ;  v.    Belcher,    3    East,    450 ;    Doe    d. 

ante,  47.  Parker  v.  Boulton,  6  M.  &  S.  14'8. 

(c)  Doe  d.  Roby  v.  Maisey,  8  B.  &  (/)  Doe  d.  Hughes  v.  Bucknell,  8 

C.   767;    Doe   d.  Fisher   v.  Giles,  5  C.   &  P.  566;   Doe   d.  Whittaker  v. 

Bing.  421  ;    Doe  d.  Snell  v.  Tom,  4  Hales,  7  Bing.  322. 
Q.    B.    615;    Doe    d.     Wilkinson    v. 

545 


*342  DETERMINATION   OF   TENANCY.  [Ch.  YIII.  S.  7. 

Corporations.  —  It  seems  that  notice  to  quit  need  not  be 
given  by  or  to  a  corporation  aggregate  where  there  has  been 
no  demise  nnder  seal,  and  that  either  party  may  determine 
the  tenancy  at  any  time  without  notice  (^).^  A  notice  to 
quit  (when  necessary)  may  be  given  by  the  steward  of  the 
corporation  without  his  being  authorized  so  to  do  under  the 
common    seal  (^.)       If   given  to  a  corporation  it  must  be 

directed  to  them,  and  not  to  their  head  officers  (Q. 
[*342]       *  Where  the  plaintiff  claims  by  title  paramount  to 
the  tenancy  from  year  to  year  notice  to  quit  is  unnec- 
essary (A-). 

Disclaimer.  —  A  disclaimer  by  a  tenant  from  year  to  year 
of  the  reversioner's  title  renders  any  notice  to  quit  unnec- 
essary (?). 

(d)  Bi/  whom  and  to  whom  given. 

By  whom.  —  A  notice  to  quit  may  be  given  either  by  the 
landlord  or  by  the  tenant,  or  by  the  authorized  agent  of 
either  party  (jn). 

Agents. —  The  agent,  who,  if  acting  generally,  may  give 
the  notice  in  his  own  name,  but  not  if  he  is  acting  sj)e- 
cially  (w),  ought  to  have  sufficient  authority  when  the  notice 
is  given,  or,  at  the  latest,  when  it  begins  to  operate :  a;  sub- 
seqlient  recognition  is  not  sufficient  (o).  Where  the  trustees 
of  a  marriage  settlement  left  the  entire  control  and  manage- 
ment of  the  trust  estates  to  their  cestui  que  trust,  who  was 
tenant  for  life  in  possession,  it  was  held,  that  he  was  their 
general  agent  in  that  behalf,  and  had  power  to  give  notices 

(fj)  Fiiil.iy  V.  Bristol  and  E.xctor  R.  {h)  Doe  d.  Tutland  i'.  Ilildcr,  2  B. 

Co.,    7    Exch.    409;    Copper    Minors'  &  A.  782  ;  Cole  Ejec.  40. 

Co.  V.  Fox,  16  Q.  B.  229;  Pennington  (/)  Post,  Sect.  8;  Cole  Ejec.  41. 

V.  Cardale,  ?>  II.  &  N.  050;   but  see  (>n)  Cole  Ejec.  42;  see  Forms,  Aj)- 

Doe   d.  I'enninf^ton    v.  Tanniere,    12  pendix  C,  Nos.  y,  5. 

Q.  15.  908.  (h)  Jones  v.  Pliipps,  infra. 

(Ii)  Hoo  d.  Dean  and  C.  of  Poches-  (o)  Doe  d.  Mann  v.  Walters,  10  B- 

ter  r.   Pierce,  2    Camp.    90;    Doe    d.  &  C.  026;   Doer/.  Lyster  ?j.  Goldwin, 

Birmint^ham    Canal  Co.   r.    Bold,   11  2  Q.  B.  148,   146;  Doe  d.   Rhodes  r. 

q.  B:  127.  Robinson,  .'5  Binjr.  N.  C.  077;  Doe  </. 

(/)   Doe    d.    Earl    of    Carlisle    v.  Fisher  v.  Cuthell,  5  East,  491,  498. 
Woodman,  1  East,  228. 

'  The  same  rules  pertain  as  in  cases  of  individuals  in  the  United  States. 

54G 


Cii.  VIII.  S.  7.]  NOTICE   TO   QUIT.  *343 

to  quit,  and  that  such  a  notice  given  in  his  own  name  only 
was  sufficient  (j^).  But  when  a  notice  to  quit  is  given  by 
a  particular  agent,  having  a  limited  authority  only,  such 
notice  should  be  given  in  the  name  of  the  principal,  or 
expressly  on  his  behalf  (g).  A  notice  given  by  an  agent  in 
the  names  of  W.  and  B.  "  and  others  "  is  valid  as  a  notice 
from  W.  and  B.  only  (r).  A  notice  by  an  agent  of  an  agent 
is  not  generally  sufficient  (»)• 

Assignees,  devisees,  heirs,  executors,  &c.  —  Any  person  for 
the  time  being  legally  entitled  to  the  immediate  reversion  of 
and  in  the  demised  premises,  ex.  gr.  as  assignee,  devisee, 
heir,  executor  or  administrator  of  the  landlord,  may  give 
notice  to  quit  (f).  ^  One  of  several  executors  or  administra- 
tors is  competent  to  give  a  notice  to  quit  on  behalf  of  all  (m). 
Any  subsequent  owner  deriving  title  through  or  under  the 
party  giving  the  notice  may  avail  himself  of  it  (x). 

Subsequent  mortgagee.  —  A  mortgagee  whose  mortgage  is 
subsequent  to  the  commencement  of  a  tenancy  from  year  to 
year  created  by  the  mortgagor  is  an  assignee  of  the  rever- 
sion, and  he  may  give  the  tenant  the  usual  notice 
*  to  quit  (?/).  But  a  prior  mortgagee  need  not  give  [*343] 
any  notice  to  quit  (3). 

Partners.  —  Where  A.  demises  to  a  mining  company,  and 
afterwards  becomes  a  member  of  that  company,  he  may 
nevertheless  give  the  company  notice  to  quit,  and  afterwards 


(/))  Jones  V.  Phipps,  L.  R.,  3  Q.  B.  (.r)  Doe    d.   Earl   of   Egreniont   v, 

303;  37  L.  J.,  Q.  B.  173.  ITellings,  6  Jur.  821,  Q.  B.;  Doe  d. 

(7)  Doe  (/.  Lyster  v.  Goldwin,  2  Q.  Earl  of  Egremont  r.  Forwood,  3  Q. 

B.    143,    146 ;    IBuron    v.   Denman,   2  B.  627  ;  Doe  d.  Higgs  v.  Terry,  4  A. 

Exch.  188 ;  Cole  Ejec.  44.  &  E.  274. 

(r)  Doe  d.  Bailey  v.  Foster,  3  C.  (,'/)  Burrovves  v.  Gradin,  1  D.  &  L. 

B.  215.  213,  218  ;  Rawson  v.  Eicke,  7  A.   & 

(s)  Doe  d.  Rhodes  r.  Robinson,  3  E.  451 ;  Burton  v.  Dickenson,  17  L. 

Bing.  N.  C.  077 ;  Cole  Ejec.  45.  T.  246. 

(0  Cole  Ejec.  42.  (z)  Ante,  314. 

(u)  Id.  43. 

1  The  notice  ought  to  show  the  assignee's  authority,  Donaldson  r.  Likens, 
2  Brewst.  (Pa.)  486 ;  but  the  omission  may  be  corrected  orally  at  the  time  of 
service,  Thamm  v.  Hambcrg,  Id.  528. 

647 


*343  DETERiUNATION   OF   TENANCY.  [Ch.  YIII.  S.  7. 

maintain  ejectment  against  them  (a).  Where  a  brewer  de- 
mised to  a  publican  upon  a  yearly  tenauc}',  determinable 
at  any  time  by  three  months'  notice,  after  which  the  brewer 
took  in  two  new  partners,  and  the  subsequent  receipts  for 
rent  were  given  in  the  name  of  the  firm :  held,  that  a  notice 
to  quit  given  by  the  lessor  in  his  own  name  only  was  suffi- 
cient, and  that  it  was  not  to  be  presumed  from  the  receif)ts 
that  the  legal  estate  in  the  reversion  had  vested  in  the  firm  (6). 

Joint  tenants.  —  Where  several  joint  tenants  demise  from 
year  to  year,  such  of  them  as  give  notice  to  quit  may  sever- 
ally recover  their  respective  shares  (c).  A  notice  to  quit 
signed  by  one  of  several  joint  tenants  on  behalf  of  himself 
and  the  others  (Avhether  authorized  by  them  or  not)  is  suffi- 
cient to  determine  a  tenancy  from  year  to  year  as  to  all ; 
because  the  tenant  holds  the  whole  premises  of  all  so  long  as 
he  and  all  shall  please,  and  a  notice  to  quit  given  by  any 
one  effectually  puts  an  end  to  that  tenancy  (t?).  And  there- 
fore also  a  notice  to  quit  given  on  behalf  of  several  joint 
tenants  by  a  person  authorized  by  one  of  them  to  give  such 
notice  is  sufficient  to  determine  the  tenancy  as  to  all  (e).  A 
notice  given  by  an  agent  in  the  names  of  W.  and  B.  "  and 
others  "  is  valid  as  a  notice  from  W.  and  B.  only  (/). 

Tenants  in  common.  —  A  notice  to  quit  given  by  oiie  of 
several  tenants  in  common  may  be  to  quit  his  undivided 
part  or  share  (,^).  Where  they  demise  jointly  they  seem  to 
stand  on  the  same  footing  as  joint  tenants,  and  notice  to 
quit  may  accordingly  be  given  b}''  either  of  them  on  behalf 
of  himself  and  the  others  (Ji). 

Receivers.  —  A  receiver,  whether  appointed  by  the  High 
Court,  or  by  a  private  individual  with  a  general  anthoriti/  to 

(a)  Doe  (1.  Harvey  i;.  Francis,  4  M.  (p)  Doe  d.  Kindersley  v.  Hughes, 
&  W.  331.  7  M.  &  W.  141. 

(b)  Doe  d.  Green  v.  Baker,  8  Taunt.  (/)  Doe  d.  Bailey  v.  Foster,  3  C. 
241.  B.  215. 

(c)  Doe  d.  Wliaynian  v.  Chaplin,  3  (//)  Cutting  v.  Derby,  2  W.  Blac 
Taunt.  120.  107o ;  Doe  d.  Robertson  v.  Gardiner, 

(d)  Doe  d.  Aslin  v.  Summersett,  1  12  C.  B.  .•323.  See  the  {oTm,post,  Ap- 
B.  &  Ad.  1.35,  140;  Doe  d.  Kinders-       pendix  C. 

ley  V.  Hughes,  7  M.  &  W.  141 ;  Al-  (A)  Cole  Ejec.  44. 

ford   V.    Vickery,   Car.    &    M.    210; 
Smith  L.  &  T.  327  (2nd  ed.). 

548 


Cii.  VIII.  S.  7.]  NOTICE   TO   QUIT.  *344 

let  the  lands  to  tenants  from  j^ear  to  year,  has  thereby 
implied  authority  to  determine  such  tenancies  by  a  regular 
notice  to  quit  (i).  But  a  person  authorized  to  manage  the 
affairs  of  another  during  his  absence  abroad,  and  to  receive 
his  rents,  has  no  authority  implied  hy  laiv  to  deter- 
mine a  tenancy  by  notice  to  *  quit ;  but  it  is  a  ques-  [*344] 
tion  of  fact  for  the  jury  wliether  he  had  such  author- 
ity (/f).  "A  mere  receiver  of  rents,  as  such,  has  no  author- 
ity to  determine  a  tenancy  "  (T). 

To  whom,  given  by  landlord.  —  A  notice  to  quit  given  by  the 
landlord  should  be  given  to  his  immediate  tenant,  or  to  his 
assignee,  &c.,  in  whom  the  term  is  then  vested,  and  not  to  a 
mere  subtenant  (ni).^  A  notice  addressed  to  the  tenant,  but 
served  upon  the  subtenant  upon  the  premises,  is  insuffi- 
cient (?^).  The  notice  should  be  directed  to  the  tenant, 
and  may  be  delivered  to  his  solicitor  or  agent  (o).  In 
Tanham  v.  Nicholson  (j»)  it  was  held  by  the  House  of  Lords 
that  service  ujion  a  person  whose  duty  it  would  be  to  deliver 
the  notice  to  the  tenant  was  sufficient  to  sustain  ejectment, 
although  in  fact  the  notice  was  never  delivered  to  the  tenant : 
in  this  case  the  tenant  was  imbecile,  and  the  notice  was 
delivered  to  his  daughter,  who  lived  in  the  house  and  man- 
aged it.     If  the  notice  be  served  upon  the  tenant  personally, 

(0  Wilkinson    v.    Colley,    5    Burr.  (»n)  Pleasant  d.  Hayton  v.  Benson, 

2696,  2698 ;  Doe  d.  Marsack  v.  Read,  14  East,  234 ;  Doe  d.  Morris  v.  Wil- 

12    East,    57;    Doe    d.    Manvers    v.  liams,  6  B.  &  C.  41. 

Mizeni,  2  Moo.  &  R.  56.  (»)  Doe    d.  Mitchell  v.  Levi,  Ad. 

(^•)  Doe  d.  Mann  v.  Walters,  10  B.  Ejec.  92,  note  (b). 

&  C.  626.  (o)  Doe  d.  Prior  v.  Ongley,  10  C. 

(/)  Id.    633,    Parke,    J. ;    Doe    d.  B.  25,  34. 

Rliodes   v.  Robinson,  3   Bing.   N.  C.  (/>)  L.  R.,  5  H.  L.  561 ;  6  Ir.,  C.  L. 

677;   Haseler   i-.   Lemoyne,  5   C.  B.,  188. 
N.  S.  550;  Pearse  v.  Boulter,  2  F.  & 
F.  133. 

^  Service  of  notice.  —  Notice  given  to  assignee  in  possession  is  sufficient, 
Lloyd  V.  Cozens,  2  Ashm.  (Pa.)  131 ;  or  to  one  of  two  joint  tenants,  Glenn  v. 
Thompson,  75  Pa.  St.  389 ;  Grundy  v.  Martin,  143  Mass.  279  ;  or  left  on  prem- 
ises with  wife  of  tenant,  Blish  i'.  Harlow,  15  Gray  (Mass.)  316;  Clark  v. 
Keliher,  107  Mass.  406 ;  or  left  at  shop  with  a  co-partner  who  is  constituted 
agent,  tenant  and  wife  being  out  of  state.  Walker  v.  Sharpe,  103  Id.  154. 

In  case  of  a  sub-lease,  notice  is  sufficient  given  to  lessee.  Lloyd  v.  Cozens, 
2  Ashm.  (Pa.)  131, 139  {per  King,  Pres.)  ;  Jackson  v.  Baker,  10  Johns.  (N.  Y.) 
270. 

549 


*345  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  7. 

it  need  not  be  directed  to  him  by  name  (^q).  The  tenant  on 
being  served  with  the  notice  should  give  a  similar  notice  to 
his  subtenant,  and  will  be  liable  to  an  ejectment  if  his  sub- 
tenant hold  over  (r).  In  the  absence  of  proof  to  the  contrary, 
a  person  who  has  obtained  possession  from  a  tenant  will  be 
presumed  to  be  in  possession  as  assignee  of  the  term,  and  not 
as  a  mere  subtenant  (s).  Where  on  the  death  of  a  tenant 
from  year  to  year  his  widow  remained  in  possession,  and  a 
notice  to  quit  was  given  to  her,  this  was  held  sufficient  in  the 
absence  of  any  evidence  of  a  probate  or  letters  of  administra- 
tion granted  to  some  other  person  (^).  Where  there  are  two 
or  more  joint  lessees,  a  notice  to  quit  given  to  one  of  them, 
even  by  parol,  is  sufficient  for  all  (?/).  Where  a  corporation 
aggregate  is  the  tenant,  and  a  notice  to  quit  is  necessary  (a;), 
it  should  be  addressed  to  the  corporation,  and  not  to  its 
officers  (?/). 

To  whom,  given  by  tenant.  —  A  notice  to  quit  given  by  the 
tenant  should  be  given  to  his  immediate  landlord  or  his  assigns, 
and  not  to  the  ground  landlord  or  other  person  through 
whom  the  immediate  landlord  derives  his  title  (2;). 
[*345]  *  If  the  immediate  landlord  is  dead,  or  has  assigned 
his  reversion,  the  notice  should  be  given  to  the  person 
or  persons  for  the  time  being  legally  entitled  to  the  immediate 
reversion^  ex.  gr.  to  the  heir,  executor,  administrator,  devisee 
or  assignee  of  such  landlord,  as  the  case  may  be  (zz).  Or  it 
may  be  given  to  the  attorney  or  agent  duly  authorized  in  that 
behalf  of  such  landlord,  or  other  person  so  entitled  as  afore- 


(7)  Doe  d.  Matthewson  i".  'Wright-  W.  Crick,  5  Esp.  190  (the  marginal 

man,  4  Ksp.  5.  note  of  this  case  is  incorrect)  ;    Doe 

(r)  Roe  V.  Wiggs,  2  Bos.  &  P.,  N.  d.  Ld.  Brailford  v.  Watkins,  7  East, 

R.  330.  551. 

(.s)  Doe  d.  Morris   v.   Williams,  6  (.r)  Ante,  30R. 

B.  &  C.  41 ;  Roe  d.  Blair  v.  Street,  2  (.'/)  Doe    d.   L.l.  Carlisle  v.  Wood 

A.  &  E.  329,  331;    Hindley  v.  Rick-  man,  8  East,  228. 

erhy,  5  Esp.  4.  (r)  Woods  v.  Hyde,  31  L.  J.,  Ch. 

(0  liees  d.  Mcars  v.  Perrot,   4  C.  295;  10  W.  R.  339. 

&  1'.  2:!0.  {zz)  Woods  )•.  Hyde,  31  L.  J.,  Ch. 

(h;  Doc  d.  Ld.  Macartney  v.  J.  and  295 ;  10  W.  R.  339. 

550 


Ch.  VIII.  S.  7.]  NOTICE  TO  QUIT.  *345 

said  (a) :  but  not  to  a  mere  collector  of  rents  who  has  no 
actual  authority  to  receive  such  notices  (6). 

(e)  Form  and  Service  of. 

Parol  notice  generally  sufficient.  —  A  parol  notice  to  quit  is 
generally  sufficient,  whether  given  by  or  on  behalf  of  the 
landlord  (c),  or  the  tenant  (d^ ;  even  when  given  on  behalf 
of  a  corporation  aggregate  by  their  steward  or  agent  (e),  if 
any  notice  be  necessary  in  such  case  (/).  A  good  parol 
notice  will  not  be  waived  by  a  subsequent  insufficient  notice 
in  writing  (^). 

Notice  in  writing.  —  Generally  speaking,  notice  to  quit  is 
given  in  writing  (A).^  No  particular  form  is  necessary ;  but 
if  given  by  or  on  behalf  of  the  landlord,  it  must  in  substance 
and  effect  request  the  tenant,  or  other  the  person  for  the 
time  being  legally  entitled  to  the  term  (not  a  mere  sub- 
tenant (0),  to  quit  and  deliver  up  possession  of  all  the 
demised  premises  at  the  proper  time  :  if  given  by  or  on  behalf 
of  the  tenant,  it  must  in  substance  and  effect  inform  the 
landlord,  or  other  the  person  or  persons  for  the  time  being 
legally  entitled  to  the  immediate  reversion,  that  the  tenant 

(o)  Doe  d.  Prior  v.  Ongley,  10  C.  (/)  Cole  Ejec.  39  ;  Finlay  r.  Bristol 

B.  25  (last  point)  ;  Papillon  i\  Brun-  and    Exeter    R.   Co.,   7    Exch.   409; 

ton,  5  H.  &,  N.  518 ;  29  L.  J.,  Ex.  265.  Copper  Miners'  Co.  v.  Fox,  16  Q.  B. 

(6)  Pearse  !•.  Boulter,  2  F.&F.  133.  229;    Doe  d.  Pennington  v.  Tanien-, 

(c)  Doe  d.  Ld.  Macartney  v.  Crick,  12  Q.  B.  998  ;  Pennington  v.  Cardale, 

5  Esp.  190  ;  2  C.  &  K.  420.  3  H.  &  N.  650. 

(rf)  Timmins  v.  Rawlinson,  3  Burr.  (9)  Doe  d.  Ld.  Macartney  v.  Crick, 

1603  ;  1  W.  Black.  533;  Bird  v.  Dev-  5  Esp.  196. 

onvielle,  2  C.  &  K.  415.  (/<)  See  the  forms,  post,  Appendix 

(e)  Roc  d.  Dean  and  C.  of  Roches-  C,  Nos.  1-7. 

ter  V.  Pierce,  2  Camp.  96 ;  7  Q.  B.  577.  (/)  Ante,  344  (w). 

1  Must  notice  be  in  -writing.  —  At  common  law  it  need  not  be.  Wilgus 
V.  Whiteliead,  89  Pa.  St.  131,  134  {per  Trunkey,  J.);  Thamm  i'.  Hamberg,  2 
Brews.  (Pa.)  528,  530  {per  Allison,  P.  J.). 

In  many  of  the  states  it  is  required  to  be.  Massachusetts  (Pub.  Sts.  ch. 
121,  sec.  12)  ;  Maine  (Rev.  Sts.  ch.  94,  sec.  2)  ;  New  York  (3  Rev.  Sts.  Part 
2,  Tit.  4,  sec.  1)  ;  West  Virginia  (Code,  ch.  93,  sec.  5)  ;  Indiana  (Rev.  Sts. 
sec.  5207)  ;  Michigan  (Sts.  sec.  5774)  ;  Minnesota  (Sts.  ch.  76,  sec.  40)  ; 
Kansas  (Comp.  Laws,  sec.  3207)  ;  Oregon  (Laws,  sec.  3520),  &c. 

Oregon  (Laws,  sec.  3520)  &c.  Service  of  a  written  notice  may  be  proved 
by  parol,  Chung  Yovv  v.  Hop  Chong,  11  Or. 

551 


*346  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  7. 

will  quit  find  deliver  up  possession  of  all  the  demised  prem- 
ises ^  at  the  proper  time  (A"). 

Certainty  of  notice.  —  A  notice  to  quit  must  be  clear  and 
certain,  so  as  to  bind  the  party  who  gives  it,  and  to  enable 
the  party  to  whom  it  is  given  to  act  upon  it  at  the  time  when 
he  ought  to  receive  it(Z).  And  in  conformity  with  the  inter- 
pretation usually  given  to  a  dictum  of  Lord  ]\Ianstield  (in  a 
case  in  which  the  court  held  the  particular  notice  before  them 

to  be  good)(7?i),  it  was  also  laid  down  in  prior  editions 
[*346]   of  this  work,  and  *  in  the  text  books  generally  (w), 

that  a  notice  to  be  good  must  not  be  optional,  i.e. 
must  not  give  the  noticee  an  oj^tion  to  enter  into  a  new 
contract  of  tenancy.  But  in  Ahearn  v.  Bellman  (o)  the 
majority  of  the  Court  of  Appeal  held  that  a  notice  might  be 
optional,  and  yet  good.  In  that  case  the  tenant  held  at  150Z. 
a  year,  and  the  notice  was  this:  —  "I  hereby  give  you  notice 
to  quit  and  deliver  up  possession  of  the  shop,  premises,  and 
show  rooms  situate  and  being  20,  Moss  Street,  Liverpool,  and 
now  held  by  you  as  tenant  from  me,  on  or  before  the  1st  day 
of  INIay,  1878.  And  I  hereby  further  give  you  notice  that 
should  you  retain  possession  of  the  premises  after  the  date  before 
mentioned.,  the  annual  rental  of  the  premises  notv  held  by  you 
from  me  will  be  160?.,  payable  quarterly  in  advanced  The 
court  (Brett,  L.  J.,  dissenting)  held  that  the  words  in  italics 
did  not  invalidate  the  notice  to  quit.     "It  has  been  said,  and 

(k)  Cole  Ejec.  40,47.  ant,  2n(l  ed.  326;    Adams  on    Eject- 

(Z)  See  Doe  (/.  Lyster  v.  Goldwin,  2  ment,  95 ;  Cole  on  Ejectment,  40. 

Q.  B.  143.  (o)  L.  R.,  4  Ex.  D.  201 ;  48  L.  J. 

(w)  Doe  d.  Matthews  v.  Jackson,  1  Ex.  081  ;  40  L.  T.  711  ;  27  W.  R.  928 

Dougl.    175.     The   words    were,    "I  —C.  A.,  reversing  the  ruling  of  Lopes, 

desire  you  to  quit,  or  I  shall  insist  on  J.,  at  Liverpool  Assizes;   Roberts  v. 

double  rent."  Hayward,  3  C.  &  P.  432. 

(n)  See  Smith's  Landlord  and  Ten- 

1  Accuracy.  —The  nolice  is  sufficiently  accurate  if  it  identify  the  prem- 
ises without  specifically  describing  them,  Dimmett  v.  Applitoii,  20  Neb.  208; 
and  even  thougli  tiicrc  be  errors  in  the  descri{)tioii  if  not  caiiulalcd  to  mislead, 
King  1'.  Connolly,  44  Cal.  23(5 ;  Congdon  v.  Brown,  7  K.  L  19. 

In  Grant  v.  Marshall,  12  Neb.  488,  480,  it  was  held  that  "  lot  15,  block  42, 
city  of  Lincoln,"  was  not  sufflt^ient,  but  that  case  is  overruled  by  Cummings  v. 
Winters,  19  Id.  719.  In  the  latter  case  "  The  N.  E.  quarter  of  section  28,  T. 
7,  R.  7,"  was  held  sufTicicnt. 

552 


Ch.  VIII.  S.  7.]  NOTICE   TO  QUIT.  *347 

truly  said,"  observed  Cotton,  L.  J.,  "  that  a  notice  to  deter- 
mine the  tenancy  must  be  clear  and  unambiguous;  but  that 
does  not  at  all  mean  that  a  notice  otherwise  sufficient  is  made 
insufficient  by  its  being  accompanied  by  something  else." 

A  notice  given  by  the  grantor  of  a  licence  to  mine,  that 
unless  the  grantee  kept  a  certain  number  of  miners  at  work, 
as  he  was  bound  to  do,  the  grantor  tvould  re-enter,  is  not  a 
good  notice  to  avoid  the  licence,  which  the  grantor  was 
entitled  to  give  (^).  A  notice  desiring  the  tenant  to  "  quit 
the  premises  which  you  hold  under  me,  your  term  therein 
having  long  since  expired,"  does  not  recognize  a  subsisting 
tenancy  from  year  to  year,  subsequent  to  the  term,  but  is  a 
mere  demand  of  possession  (g).  A  notice  to  quit  and  give 
up  possession,  but  not  stating  to  whom,  is  sufficient  (r). 

Must  extend  to  all  the  premises.  —  The  notice  must  extend 
to  all  the  demised  premises,  and  not  to  a  part  only,  otherwise 
it  will  be  bad  (.s-).  But  the  court  will  if  possible  construe  the 
notice  as  a  good  notice  for  the  whole,  rather  than  as  a  bad 
notice  for  part  only.  Therefore  a  notice  to  quit  "  Town 
Barton,  &c."  is  sufficient  for  other  lands  having  distinct 
names  held  therewith  (f).  So  a  notice  to  quit  "  all  that 
messuage,  tenement  or  dwell-house,  farm,  lands  and  prem- 
ises, with  the  appurtenances,  which  you  rent  of  me  in  the 
parish  of  S.,"  is  sufficient  to  include  the  great  and  small  tithes 
held  therewith  under  a  parol  demise  (w).  A  joint  tenant  or 
tenant  in  common  may  give  notice  to  quit  all  his  part 
or  *  share  of  the  demised  premises  (a;).  [*347] 

Misdescriptions,  -when  immaterial.  —  A  mere   misde- 
scription of  the  property  in  a  notice  to  quit  is  not  fatal  if  the 
tenant  be  not  misled  by  it.     Thus  where  the  premises  were 
fully  and  accurately  described,  except  that  they  were  called 
"  The    Waterman's    Arms "    instead  of   "  The    Bricklayer's 

(p)  Muskett  V.  Hill,  5  Bing.  N.  C.  East.  498;  Doe  d.  Rodd  v.  Archer,  14 

694.  East,  244. 

(q)  Doe    d.    Godsell    v.    Inglis,   3  (t)  Doe  d.  Rodd  v.  Archer,  14  East, 

Taunt.  54.  244. 

(r)  Doe  d.  Bailey  v.  Foster,  3  C.  B.  («)  Doe   d.   Morgan  v.  Church,  3 

215.  Camp.  71. 

(s)  Right   d.  Fisher   v.  Cuthell,  5  (a:)  Ante,  343. 

553 


*347  DETERMINATION    OF   TENANCY.         [Ch.  VIII.  S.  7. 

Arms"  (_y),  and  where  the  premises  were  described  as  situate 
in  the  parish  of  D.  (instead  of  the  parish  of  H.),  in  the  county 
of  York  (s),  both  these  notices  were  held  sufficient. 

When  must  expire.  —  The  notice  must  require  the  tenant 
to  quit,  or  give  notice  of  his  intention  to  quit,  at  the  jyroper 
time.  This  is  the  point  with  respect  to  which  mistakes  are 
most  frequently  made  ;  and  such  mistakes  are  usually  fatal 
to  the  validity  of  the  notice  (a).  In  the  case  of  an  implied 
tenancy  from  year  to  year,  if  the  holding  be  agricultural,  a 
year's  notice  expiring  with  a  year  of  tenancy  must  be  given, 
unless  the  Agricultural  Holdings  Act,  1883,  has  been  ex- 
cluded by  mutual  agreement  in  writing  (U).  Where  that 
act  does  not  apply,  or  has  been  excluded,  the  law  requires 
half-a-year's  notice  to  quit  at  the  end  of  the  first-  or  some 
other  year  of  the  tenancy,  and  not  at  any  other  period  ((?), 
whether  the  demised  premises  consist  of  land  or  houses  (c?). 

Mining  Lease.  —  In  a  mining  lease,  where  the  lessees  are  to 
be  at  liberty  to  determine  it  at  any  time  upon  a  six  months' 
notice,  such  notice  may  expire  at  any  time  and  not  merely 
at  the  end  of  the  3'ear  (^). 

"Weekly,  &c.  tenancies.  —  The  peculiar  case  of  weekly, 
&c.  tenancies  has  been  already  dealt  with  (/). 

Customary  half-year's  notice.  —  If  the  tenancy  commence 
on  one  of  the  ordinary  feast  days,^  a  notice  on  or  before  one 

(i/)  Doe  d.  Cox  V.  ,  4   Esp.  (c)  Parker  d.  Walker  v.  Constable, 

185.  3  Wils.  25  ;  Ki<rht  d.  Flower  v.  Darby, 

(2)  Doe  d.  Armstrong  v.  Wilkinson,  1  T.  11.  159 ;    Doe  d.  David  v.  Wil- 

12  A.  &  E.  743.  lianis,  7  C.  &  P.  322;  Doe  d.  Murrcll 

(a)  Cole  Ejec.  48;  Doe  d.  Castle-  v.  Mil  ward,  3  M.  &  W.  328;  Koe  d. 

ton   V.  Samuel,  5   Esp.  173;    Doe    d.  Brown  r.  Wilkinson,  Co.  Lit.  270  b, 

Spicer  v.  Lea,  11  East,  312;  Doe  d.  note  (228). 

Finlayson   v.  Bayley,  5  C.  &  P.  67;  {d)  Iloe  rf.  Brown  f.  Wilkinson,  Co. 

Doe  </.  Daniel />.  Williams,  7  C.  &  P.  Lit.    270    b,   note    (228);     Right    d. 

322  ;  Doe  d.  Murrell  v.  Milward,  3  M.  Flower  v.  Darby,  1  T.  R.  102. 

&  W.  328 ;  Goode  v.  llowells,  4  M.  &  (0  Bridges  v.  Potts,  17  C.  B.,  N.  S. 

W.  198.  314;  .33  L.  J.,  C.  P.  338. 

(i)  See  seet.  33  of  that  act,  ante,  (/)  Ante,  p.  339. 
335. 

'  Time  of  service.  —  Notice  served  Dccenilier  2U  is  (in  Pennsylvania,  at 
leastj  in  season  to  teriiiiiuite  tenancy  commencing  March  25.   Ogden  v.  Dully, 

654 


Cu.  VIII.  S.  7.]  ■  NOTICE   TO   QUIT.  *348 

of  the  feast  days  in  the  earlier  half  of  the  tenancy  to  quit  on 
the  feast  day  at  the  conclusion  of  the  tenancy  is  sufficient 
and  necessary,  although  the  period  between  the  two  feast 
days  should  exceed  or  fall  short  of  the  number  of  days  wluch 
constitute  a  half-year  (^).  Thus  a  notice  served  on  or  before 
Michaelmas-day  to  quit  on  the  following  Lady-day  (from 
which  day  the  tenancy  commenced)  is  sufficient  (A), 
though  there  are  fewer  than  183  days  *  between  the  [*348] 
28th  September  and  the  25th  March.  So  a  notice  to 
quit  on  the  24th  of  June  served  on  the  preceding  Christmas- 
day  is  sufficient  (z) ;  but  a  notice  served  on  the  26th  of 
March  to  quit  on  the  29th  of  September  then  next  is  insuffi- 
cient (^),  although  there  are  more  than  183  days  between 
the  26th  of  March  and  the  29th  of  September.  Where  the 
tenancy  commenced  from  some  day  in  the  year  other  than 
one  of  the  usual  quarter  days,  a  full  half-year's  notice  (183 
days),  expiring  on  such  day,  must  be  given  (Z).  But  where 
a  "  six  months' "  notice  on  either  side  is  expressly  agreed 
for,  it  seems  that  a  six  lunar  months'  notice  is  sufficient  (w). 
New  style  or  old  style.  —  A  notice  to  quit  at  ""  Michaelmas 
next "  prima  facie  means  Michaelmas,  new  style  (29th  of 
September)  ;   but  it  will   be    sufficient  for  a  tenancy  com- 

(g)  Morgan  v.  Da  vies,  L.  R.,  3  C.  (?)  Doe  d.  Buddie  v.  Lines,  11  Q. 

P.  b.  260;    26   W.  E.   816;    Doe   v.  B.  402. 

Kightley,    7    T.    R.   63;    Howard    v.  (k)  Morgan  v.  Davies,  3  C.  P.  D. 

Wenisley,  6  Esp.  53;  Smith  L.  &  T.  360;  26  W.  R.  816. 

319  (2nd  ed.).  (/)  Doe  d.  Spicer  v.  Lea,  11  East, 

(/i)  Roe  d.  Durant  v.  Doe,  6  Bing.  312;  Mills  v.  Goff,  14  M.  &  W.  72;  2 

574;  Doe  d.  Matthewson  v.  Wright-  D.    &   L.   23;    Doe    d.   Cornwall    v. 

man,   4   Esp.    5 ;    Doe    d.   Harrop    ?;.  Matthews,  11  C.  B.  675. 

Green,  Id.  198,  199  ;  Doe  d.  Lil.  Brad-  (m)  Rogers  v.  Kingston-upon-Hull 

ford  V.  Watkins,  7  East,  551 ;  Papillon  Dock  Co.,  34  L.  J.,  Ch.  765. 
V.  Brunton,  5  H.  &  N.  518;  29  L.  J., 
.Ex.  265. 

1  Leg.  Gaz.  Rep.  4,  and  64  Pa.  St.  240,  241,  242.  Agnew,  J.,  said  the  year 
expired  at  midnight,  Marcli  24 ;  and,  counting  December  25  as  an  entire  day, 
tliree  entire  months  had  then  passed.  Notice  served  February  12  is  in  season 
to  terminate  tenancy  commencing  May  12.  McGowen  v.  Sennett,  1  Brews. 
(Pa.)  397,  398. 

In  reckoning  time  from  a  certain  day,  ordinarily  that  day  is  excluded  in  tlie 
reckoning.  1  Wash,  on  Real  Prop.  sec.  292  ;  Atkins  v.  Sleeper,  7  Allen 
(Mass.)  487.  The  contrari/  case  of  Marys  v.  Anderson,  2  Grant's  Cas.  (Pa.) 
446,  would  probably  not  now  be  followed  in  Pennsylvania,  as  it  is  in  principle 
overthrown  by  Cronielien  c.  Brink,  29  Pa.  St.  522. 

555 


*349  DETERMINATION   OF   TENANCY.        [Ch.  VIII.  S.  7. 

mencing  at  Michaelmas,  old  style  (lltli  of  October),  because 
the  tenant  cannot  have  been  misled  or  prejudiced  by  it  (w). 
But  a  notice  to  quit  "  on  the  11th  of  October,  Old  Michael- 
mas-day," is  bad,  if  the  tenancy  commenced  at  New  Michael- 
mas (o).  Upon  a  written  agreement  to  demise  from  the 
following  "  Lady-day,"  a  notice  to  quit  on  the  6th  of  April 
is  good,  upon  parol  evidence  that  b}^  ''  Lady-day  "  the  par- 
ties meant  Old  Lady-day :  such  evidence  is  admissible  Avhere 
the  written  agreement  is  not  under  seal  (7^).  A  notice  to 
quit  on  "  Lady-day  "  is  good  either  for  the  New  or  Old  Lady- 
day,  according  to  the  holding,  if  served  in  due  time  (^q).  A 
notice  to  quit  "  on  the  25th  day  of  March  or  the  6th  day  of 
April  next,"  if  served  in  sufficient  time,  is  good  for  New  or 
Old  Lady-day,  according  as  the  tenancy  actually  com- 
menced (r). 

Must  expire  on  last  day  of  some  year.  —  Generally  speaking, 
a  notice  to  quit  should  expire  on  the  last  day  of  some  year  of 
the  tenancy,  and  not  on  the  same  day  on  which  the  tenancy 
commenced  (s).  Thus,  upon  a  tenancy  from  Lady-day,  the 
notice  should  expire  on  Lady-day,  and  not  on  the  26th  of 
March  (0- 

Not  "at  noon." — A  notice  to  quit  on  the  proper  day  at 
twelve  o'clock  at  noon  is  bad  (ii). 

Need  not  mention  particular  day.  —  The  notice  need  not  men- 
tion the  particular  day  on  which  the  tenant  is  required  to 
quit.  Thus  a  notice  to  quit  "  at  the  expiration  of  the  current 
year  of  the  tenancy  which  shall  expire  next  after  the 
[*349]  end  of  *one  half-year  from  the  date  hereof"  is  suffi- 
cient (x).     A  notice  on  22nd  March  to  quit  "at  the 

{ii)  Furloy  d.  Mayor,  &c.  of  Can-  (?)  Doe  d.  Matthewson  v.  Wright- 

terbury  v.  Wood,  1  Esp.  198;  Doe  </.  man,  4  Esp.  0. 

Hinde  v.  Vincc,  2  Camp.  250  ;  Doe  (/.  (*)  Toole  v.  Warren,  8  A.  &  E.  587, 

Willis  V.  Perrin,  9  C.  &  P.  467.  588. 

(«)  Doe  d.  Spicer  i;.  Lea,  11  East,  (0  Atkland  v.  Lutley,  9  A.  &    E. 

312;  Smith  v.  Walton,  8  Bing.  235;  879. 
Cadby  V.  Martinez,*  11  A.  &  E.  720.  (h)  Page  r.  More,  15  Q.  B.  084. 

{p)  Denn  d.  Peters  r.  Ilopkinson,  (.r)  Doe  </.  Phillips  r.  Butler,  2  Esp. 

3  D.  &  K.  507  ;  Doe  d.  Hale  v.  Ben-  589;  Doe  d.  Williams  v.  Smith,  5  A. 

son,  4  B.  &  A.  588.  &  E.  350. 

(7)  Denn    d.    Willan    v.    Walker, 
Pcakc,  Ad.  Cas.  194. 

556 


Cii.  VIII.  S.  7.]  NOTICE  TO   QUIT.  *349 

expiration  of  the  cuiTcnt  year"  is  sufficient  for  the  29th 
September,  if  the  tenancy  commenced  from  that  day  (y), 
but  it  is  better. not  to  use  the  expression  current  year  (2). 
A  notice  on  27th  September  to  quit  "at  the  expiration  of  the 
term  for  which  you  hokl  the  same  "  is  sufficient  for  Lady- 
day,  if  the  tenancy  commenced  from  that  day  (a).  A  notice 
to  quit  "  at  the  expiration  of  the  present  year's  tenancy  "  is 
sufficient,  although  it  does  not  appear  on  the  face  of  it  that  it 
was  given  six  months  before  the  expiration  of  the  current 
year  of  the  tenancy  (6). 

When  commencement  of  tenancy  unkno-wn.  —  Where  it  is 
unknown  and  cannot  be  ascertained  or  proved  at  what  time 
of  the  year  the  tenancy  actually  commenced,  the  notice 
should  be  to  quit  on  a  specified  quarter  day,  "  or  at  the  ex- 
piration of  the  current  year  of  your  tenancy  which  shall 
expire  next  after  the  end  of  one  half-year  from  the  service 
of  this  notice  "  ((?).  If  an  ejectment  founded  on  such  notice 
be  not  commenced,  nor  the  claimant  alleged  in  the  writ  to 
be  entitled  to  possession,  until  some  day  after  the  third  quar- 
ter day  succeeding  that  mentioned  in  the  notice,  such  notice 
will  certainly  be  sufficient,  supposing  the  rent  to  be  payable 
on  the  usual  quarter  days  and  no  rent  to  be  received  which 
accrued  subsequently  to  the  quarter  day  mentioned  in  the 
notice.  This  is  the  safest  course  to  be  pursued  under  such 
circumstances  (d).  But  sometimes  an  implied  admission 
may  be  obtained  from  the  tenant,  by  serving  him  personally 
with  a  notice  to  quit  on  a  particular  day,  and  reading  it  to 
him,  or  getting  him  to  read  it,  if  he  make  an  objection  to  it 
on  the  ground  that  it  is  to  quit  at  the  wrong  time  (e).  But 
the  defendant  may  rebut  such  prim^  facie  evidence  as  to  the 
""time  when  the  term  commenced  by  proof  that  the  tenancy 

(y)  Doe  d.  Baker  v.  Wombwell,  2  (c)  Doe  d.  Digby  v.  Steel,  3  Camp. 

Camp.  559.  117  ;  Hirst  v.  Horn,  6  M.  &  W.  393. 

(s)  Doe  d.  Mayor  of  Iliclimond  v.  (d)  Cole  Ejec.  5i. 

Morphett,  7  Q.  B.  577  ;  Smith  L.  &  (e)  Thomas  d.  Jones   v.   Reece,  2 

T.  323,  326  (2nd  ed.).  Camp.  047:  Doe  d.  Charges,  Bart.  ;■. 

(a)  Doe  d.  Milnes  v.  Lamb,  Ad.  Forster,  loEast,40o;  Doe  (/.  Leioostor 
Ejec.  272,  Holroyd,  J.  v.  Biggs,  2   Taunt.   109 ;    Walker  i;. 

(b)  Doe  d.  Gorst  v.  Timothy,  2  C.  Code,  (J  H.  &  N.  594;  30  L.  J.,  Ex. 
&  K.  351.  172. 

657 


*350  DETERMINATION   OF   TENANCY.         [Ch.  VIII.  S.  7. 

actually  commenced  at  a  different  part  of  the  year  (/).  In 
the  absence  of  such  proof  the  jury  should  be  directed  to  infer 
and  find' that  the  tenancy  commenced  at  the  time  mentioned 
in  the  notice  (^).  If  the  tenant,  in  answer  to  an  application 
by  the  landlord  or  his  agent,  state  that  the  tenancy  com- 
menced on  a  particular  day,  and  a  notice  is  thereupon  given 

him  to  quit  on  that  day,  it  seems  that  he  will  be 
[*350]  estopped  from  *  afterwards  proving  tliat  the  tenancy 

commenced  on  a  different  day  (/;).  It  was  once  ruled 
that  a  notice  to  quit  upon  a  particular  day  was  prima  facie 
evidence  that  the  tenancy  commenced  on  that  day,  and  threw 
upon  the  defendant  the  onus  of  proof  that  it  commenced  on 
some  other  day  (i).  But  it  is  now  settled  that  such  a  notice 
(without  more)  is  not  even  prima  facie  evidence  that  the 
tenancy  commenced  on  the  day  therein  mentioned  (/c). 

When  tenant  enters  in  middle  of  quarter.  —  When  a  tenant 
enters  in  the  middle  of  a  quarter,  and  jjai/s  rent  for  the  broken 
period  to  the  next  regular  quarter  da}^  and  subsequently 
pays  his  rent  from  quarter  to  quarter,  his  tenancy  will  be 
deemed  to  have  commenced,  not  when  he  first  entered,  but 
at  the  ensuing  quarter  day,  and  notice  to  quit  should  be 
given  accordingly  (?).  But  if  he  has  not  paid  any  rent  the 
tenancy  will  be  deemed  to  have  commenced  on  the  day  when 
he  entered,  and  notice  to  quit  at  that  time  will  be  good  (jri). 

"When  different  parts  are  entered  at  different  times.  —  Where 
different  parts  of  the  demised  })remises  were  entered  upon  at 
different  times  the  notice  sliould  l)e  to  quit  at  corresponding 
periods,  "or  at  the  expiration  of  the  year  of  the  tenancy 
which  will  expire  next  after  the  expiration  of  half  a  year 
from  the  delivery  of  this  notice  "  («).     Such  notice  has  been 

(/)  Oakapple  d.  Green  v.  Copous,  {k)  Doe  d.  Ash  ?•.  Calvert,  2  Camp. 

4  T.  K.  .301;  Cadby  v.   Martinez,  11  388. 
A.  &  K.  7"J0.  (/)  Doe  d   Ilolcoinl)  v.  .Johnson,  0 

(f/)  Walker   r*  Code,   0   II.   &   N.  Esp.  10;  Savage  v.  Stapleton,  ;]  C.  & 

rj04;  ;5()  L.  .1.,  Ex.  172.  V.  21^>\  Doe  d.  King  v.  Grafton,  18 

(h)  Doe  d.  Eyre  v.  Lamhley,  2  Esp.  (i  H.  490  ;  21  L.  .1.,  Q.  B.  27(5. 
02!");  but  see  Doe  d.  Murrell  v.  Mil-  (m)  Doc  d.   Cornwall  v.  Matthews, 

ward,  .1  M.  &  W.  3.31.  1 1  C.  B.  G75. 

(/)  Mattiiewson    v.   Wrightman,   4  (»)  Doe  </.  Williams  i'.  Smith,  5  A. 

Esp.  7.  &  1-  yoO. 

558 


Cii.  VIII.  S.  7.]  NOTICE  TO   QUIT.  *351 

held  to  be  sufficient  for  the  whole  of  the  premises,  if  served 
in  time  for  the  principal  subject  of  the  demise  (o).  But  this 
was  in  the  case  of  agricultural  tenancies,  where  the  entry 
upon  the  accessorial  part  of  the  premises  was  at  a  different 
time  from  that  upon  the  substantial  part  for  agricultural  rea- 
sons, and  the  court  viewed  the  landlord  as  having  given  a 
licence  to  enter  the  accessorial  part  rather  than  as  having 
made  a  demise  of  it.  If  any  doubt  arise  as  to  which  is  the 
principal  and  which  the  accessorial  subject  of  the  demise, 
that  is  a  question  of  fact  for  the  jury  (|>)  ;  bat  if  the  judge 
assumes  the  fact  either  way,  and  decides  accordingly,  that 
the  notice  to  quit  is  or  is  not  sufficient,  the  party  against 
whom  he  so  decides  should  expressly  desire  him  to  leave  the 
question  of  fact  to  the  jury,  otherwise  it  will  be  taken,  upon 
any  application  for  a  new  trial,  &c.,  that  he  acquiesced  in  the 
fact  assumed  by  the  judge  as  the  ground  of  his  decision  (  q). 

Increase  of  rent.  —  No  new  tenancy  is  created  by 
a  mere  agreement  for  an  increase    of   rent  *in  the   [*351] 
middle  of  the  year  of  a  tenancy,  and  a  notice  to  quit 
after  the  receipt  of   the  increased  rent  must  expire  at  the 
time  when  the  tenant  originally  entered  (/•). 

Where  tenant  holds  over.  —  Generally  speaking,  an  implied 
tenancy  from  year  to  year,  created  by  the  payment  and 
acceptance  of  rent  after  the  end  or  determination  of  a  pre- 
vious term,  will  be  deemed  to  have  commenced  at  the  same 
time  of  the  year  as  the  original  term,  and  notice  to  quit 
should  be  given  accordingly  (s).  And  this  rule  prevails  even 
where  the  original  term  did  not  cease  at  the  same  time  of  the 
year  as  it  commenced,  as  where  premises  were  originally  de- 
mised for  five  and  a  half  years,  and  an  implied  tenancy  from 

(o)  Doe  d.   Dafjpet  v.  Snowden,  2  d.  Holcombe  v.  Johnson,  6  Esp.  10 ; 

W.  Blac.  1224;  Doe  d.  Strickland  v.  Crowley  v.  Vitey,  7  Ex.  319;  21  L.  J., 

Spence,  6  East,  120  ;  Doe  d.  Ld.  Brad-  Ex.  136. 

ford  V.  Watkins,  7  East,  551 ;  Doe  d.  (s)  Roe  d.  Jordan   v.  Ward,  1    H. 

Davenport   v.   Rhodes,   11   M.  &  W.  Blac.  96;  Doe  d.  Martin  ;•.  Watts,  7 

002,  003.  T.  R.  83;  Doe  d.  Collins  v.  Weller,  7 

{}))  Smith  L.  &T.  322  (2nd  ed.).  T.  R.  478;  Doe  f/.  Castleton  r.  Samuel, 

{</)  Doe  d.   Heapy  v.   Howard,   11  5  Esp.  173;  Doe  d.  Sj)icer  v.  Lea,  11 

East,    498;     Doe    d.    Kindersley    v.  East,  312;  Doe  f/.  Tucker  y.  Morse,  1 

Hughes,  7  M.  &  W.  141.  B.  &  Ad.  365;  Humphreys  v.  Franks, 

(r)  Ad.  Ejcc.   107   (4th  ed.) ;    Doe  18  C.  B.  323. 

559 


*352  DETERMINATION'    OF   TENANCY.  [Ch.  VIII.  S.  7. 

year  to  year  was  afterwards  created  (t) ;  and  where  a  new 
landlord  allowed  the  tenant  of  his  predecessor  to  remain  in 
occupation  and  receiv^e  rent  from  him  (it).  But  this  rule 
applies  only  to  a  case  where  the  tenant  holds  over  on  a  lease 
made  to  himself  (a;). 

Where  a  subtenant  by  assignment  holds  over,  and  pays 
rent  after  the  expiration  of  a  lease  commencing  at  Christmas 
and  expiring  at  jNlidsummer,  a  notice  requiring  him  to  quit 
at  Midsummer  is  good  (^). 

Where  possession  is  under  void  demise.  —  Where  the  tenant 
comes  into  possession  under  a  void  lease,  a  tenancy  from 
year  to  year  is  created ;  but,  -generally  speaking,  the  holding 
must  be  taken  with  reference  to  the  period  of  entry  under 
the  lease  so  far  as  regards  the  expiration  of  the  notice  to 
quit:  thus  where  a  remainderman  creates  a  new  tenancy 
with  a  tenant  in  possession  under  a  void  lease  granted  by  a 
tenant  for  life,  and  receives  rent  on  the  days  of  payment 
mentioned  in  the  lease,  a  notice  to  quit  must  expire  on  the 
day  of  entry  under  the  original  demise  (2).  And  it  was  held 
in  the  leading  case  of  Doe  d.  Rigge  v.  Bell,  that  if  a  landlord 
lease  for  seven  years  by  parol,  and  agree  that  the  tenant 
shall  enter  at  Lady-day  and  quit  at  Candlemas,  though  the 
lease  be  void  by  the  Statute  of  Frauds  as  to  the  duration  of 
the  term,  tlie  tenant  holds  under  tlie  terms  of  the  lease  in 
other  respects ;  and  therefore  the  landlord  can  only  put  an 

end  to  the  tenancy  at  Candlemas  («). 
[*352]         *  Where    three    months'    notice    sufficient.  —  Where 
premises  are  let  from  year  to  year  upon  an  agree- 
ment that  either  party  may  determine  the    tenancy  by  a 
quarter's  notice,  the  notice  must  expire  at  the  period  of  the 

(0  Bcrrey  v.  Lindlcy,  3  M.  &  G.  {z)  Roc  d.  Jordan  v.  Ward,  1  H. 

498;  Doe  d.  Robinson  r.  DobcU,  1  Q.  Blac.  iUi ;  Doe  d.  Collins  v.  Wellcr,  7 

B.  800;  Kemp    v.  Derrott,    .']    Camp.  T.  R.  478 ;  Beale  v.  Sanders,  ;J  Hinp 

510.  N.  C.  850  ;   Leo  v.  Smith,  »  Exch.  ()02 

(u)  Kelley  v.  Patterson,  L.  \\.,  0  C.  («)  Doe  d.  Rigije  r.  Bell,  5  T.  R 

P.  081  ;  4:3  L.  J.,  C.  P.  320  ;  30  L.  T.  571 ;  2  Smith  L.  C.  90  (7th  ed.)  ;  Doe 

812,  where  see  the  cases  reviewed  by  d.    I'eaeock     v.    Rafl'an,    0    Ksji.    4 

Brett,  J.  Richardson  v.  (Jiffard,  1   A.  &  E.  52 

(x)  Per  Brett,  J.,  id.  Doc  d.  'I'homson  v.  Amey,  12  A.  &  E 

(//)  Doe  d.  Buddie  v.  Lines,  11  Q.  470;  Doe  d.  Davenish  v.  Moflatt,  15 

B.  402.  Q.  B.  257. 

560 


Cn.  VIII.  S.  7.]  NOTICE  TO   QUIT.  *352 

year  when  the  tenancy  commenced  (/>)  :  so  where  premises  are 
taken  under  an  agreement,  by  which  the  tenant  "is  always  to 
quit  at  three  months'  notice,"  the  notice  must  expire  either  on 
the  same  day  of  the  year  the  tenancy  commenced,  or  on  one 
of  the  three  other  corresponding  quarter  days  (c). 

Weekly  tenancies.  —  It  appears  not  to  have  been  express!}^ 
decided  what  notice  to  quit  is  necessary  in  the  case  of  a 
weekly  tenancy.  The  authorities  on  the  point  have  already 
been  examined  ((7). 

Date  of  notice.  —  The  day  or  time  mentioned  in  the  notice 
to  quit  should  always  be  correct  with  reference  to  the  date 
of  the  notice.  Any  mistake  in  this  respect  is  generally  fatal 
to  the  validity  of  the  notice  (^).  But  a  notice  dated  on  the 
27th,  and  served  on  the  28th  September^  requiring  a  tenant 
to  quit  "at  Ladij-day  next,  or  at  the  end  of  his  current 
year,"  was  held  in  one  case  to  mean  a  six  months'  and  not  a 
two  days'  notice  to  quit  (/)  ;  but  this  decision  has  been 
since  overruled  in  a  case  where  a  notice  was  held  bad  which 
was  served  on  the  21st  October,  to  quit  "on  the  13th  of 
May  next,  or  upon  such  other  day  as  the  current  year  for 
which  you  now  hold  will  expire,"  the  holding  being  one 
from  a  day  in  November  (//).  A  notice  served  on  the  17th 
June  to  quit  "on  the  11th  October  now  next  ensuing,  or 
such  other  day  and  time  as  your  said  tenancy  may  expire 
on,"  is  not  a  good  notice  for  the  Michaelmas  in  the  following 
year  (A).  A  notice  delivered  to  a  tenant  at  3Ilchaelmas. 
1795,  to  quit  "  at  Lady-day  which  will  be  in  the  year  1795," 
was  held  to  be  a  good  notice  to  quit  at  Lady-day,  1796  ;  for 
the  intention  was  clear,  and  1795  was  to  be  rejected  as  an 
impossible  year  (i).  So  w^here  a  yearly  tenancy  expired  in 
February,  and  in  October,  1833,  a  notice  was  given  to  quit 
"  at  the  expiration  of  half  a  year  from  the  deliver}^  of  this 
notice,  or  at  such  other  time  or  times  as  your  present  year's 

(/>)  Doe   d.  Pitcher  r.  Donovan,  1  Ciilliford,  4  D.  &  R.  249;  Doe  d.  Earl 

Taunt.  555;  2  Camp.  78.  of  Es^remont  v.  Forwood,  .3  Q.  B.  027. 

(c)  Kemp  V.  Derrett,  3  Camp.  510.  (7)  Doe  d.  Maj'or,  &.c  of  Richmond 

(r/)  ^H/e,  339 ;  see  especially  Jones  r.  MorphPtt,  7  Q.  B.  577. 

V.  Mills,  31  L.  J.,  C.  P.  60.  (/*)  Mills  r.  Goff,  14  M.  &  W.  72. 

(e)  Cole  Ejec.  52.  (0  Doe    d.    Duke    of    Bedford    i'. 

(/')Doe   d.   Ld.  Huntingtower    v.  Kightley,  7  T.  R.  03. 

661 


*oo3  DETERMINATION   OF   TENANCY.  [Ch.  VIII.  S.  7. 

holding  of  or  in  the  said  messuage,  &c.  shall  expire  after  the 
expiration  of  half  a  year  from  the  delivery  of  this  notice,"  it 
was  held  a  good  notice  for  February,  1835  (^). 

To  •whom  notice  should  be  directed  and  given.  —  It  is  not 
necessary  that  a  notice  to  quit  should  be  directed  to  the 
tenant  in  possession,  if  proved  to  have  been  delivered 
[*353]  to  him  as  tenant  *  at  the  proper  time  (Z)  :  and  if  a  no- 
tice to  quit  be  directed  to  the  tenant  by  a  wrong  Chris- 
tian name,  and  he  keeps  it  without  objection,  it  is  a  waiver  of 
the  misdirection  (»?)  :  and  where  two  tenants  hold  premises 
in  common,  a  notice  to  quit  to  one  of  them  is  sufficient  to 
determine  the  tenancy  (w)  :  at  least  it  is  evidence  that  the 
notice  reached  the  other  tenant  who  lived  elsewhere  (o). 
Where  a  tenant  from  year  to  year  sublet  part  of  the  prem- 
ises, and  then  gave  up  to  his  landlord  the  part  remaining  in 
his  own  possession,  the  landlord  cannot  entitle  himself  to 
recover  against  the  sublessee,  no  notice  to  quit  having  been 
given  to  the  lessee,  but  only  a  notice  to  the  sublessee,  and 
that  by  the  landlord,  in  his  own  name,  and  not  in  tlie  name 
of  the  first  lessee  (p).  In  ejectment  against  S.  and  F.,  wliere 
it  is  shown  that  B.,  not  a  party  to  the  cause,  cam^s  into  pos- 
session of  the  premises  under  an  unperformed  contract  of 
sale,  and  that  S.  and  F.  held  under  him,  notice  to  quit  served 
upon  S.  and  F.  is  sufficient  {q}. 

Attestation  of  notice.  ^  A  notice  to  quit  need  not  be 
attested.  If  attested  it  may  be  proved  without  calling  the 
attesting  witness  (r)  ;  but  this  was  formerly  otherwise  (.«). 
It  may  be  proved  by  an  examined  copy  oi-  duplicate,  without 
any  notice  to  produce  the  original  Q'). 

When  and  how  served.  —  The   notice  must   generally  be 

(k)  Doc    d.  Williams    v.  Smith,    5  (p)  Pleasant  d.  Ilayton  v.  Benson, 

A.  &  E.  350;    Doe   d.  Kinderslcy  v.  14  East,  2;]4. 

Hughes,  7  M.  &  W.  139.  (7)  Roe  d.  Blair  v.  Street,  2  A.  &E. 

(I)  Doe  d.  Mattliewson  r.  Wrifrht-  329. 

man,  4  Esp.  5.  (r)  C.  L.  P.  Act,  1851,  s.  20. 

(w)  Doe  V.  Spiller,  6  Esp.  70,  (.s)  Doe  d.  Sykes  v.  Diirnford,  2  M. 

(n)  Doe  d.  Ld.  Macartney  r.  Criik,  &  S.  62;  Poole  r.  Wavren,  8  A.  &  E. 

f>  Esp.  urn.  682. 

(o)  Doe  d.  Ld.   Bradford    v.   Wat-  (t)  Doe  </.  Fleming  v.  Somerton,  7 

kins,  7  East,  G61.  g.  B.  •''.8 ;  Keg.  r.  Mortlock,  Id.  469; 

Cole  Ejec.  54, 159. 

562 


Cii.VlII.  S.  7.]  NOTICE   TO   QUIT.  *354 

served  half  a  year  before  the  time  when  the  tenant  is  to  quit 
possession  (w).  Bnt  a  customary  half-year's  notice  is  suffi- 
cient where  the  tenancy  is  from  one  of  the  usual  quarter 
days  (a;).  Where  a  greater  or  less  notice  than  that  usually 
required  by  law  is  provided  for  by  express  stipulation  or 
local  custom,  it  will  be  sufficient  to  give  notice  accord- 
ingly (?/).  Where  a  "six  jnonths' "  notice  is  agreed  for,  it 
seems  that  a  six  lunar  ^  months'  notice  is  sufficient  (z). 

Sunday.  —  The  notice  may  be  served  on  a  Sunday  (a). 

Service  of  notice  to  quit.  —  A  notice  to  quit  need  not  he 
served  iJerso7ially  on  the  tenant.''^  It  is  sufficient  to  leave  it 
at  his  dwelling-house  with  his  wife  or  servant  (6).  Such 
service  is  sufficient  although  the  notice  does  not  actually 
reach  the  tenant's  (or  landlord's)  hands  before  the  half-year 
has  commenced  (c^.  But  merely  leaving  the  notice  at  the 
tenant's  house,  without  any  explanation,  and  without 
proof  that  the  person  to  whom  *  it  was  delivered  was  [*354] 
the  tenant's  wife  or  servant,  or  that  it  ever  came  to 
his  hands,  is  not  sufficient  (t7).  So  service  on  the  tenant's 
wife,  off  the  demised  premises  and  without  proof  that  it  was 
at  her  husband's  residence,  where  she  was  then  living  with 
him,  appears  to  be  insufficient  (e).  Service  of  the  notice 
upon  a  relative  of  the  subtenant  upon  the  premises  is  not 
sufficient,  although  the  notice  was  properly  addressed  to  the 
tenant  (/).  Putting  the  notice  under  the  door  of  the  ten- 
ant's house,  or  any  other  mode  of  service,  has  been  said  to 
be  sufficient,  if  it  be  shown  that  the  notice  came  to  the  teu- 

(m)  Right  d.  Flower  v.  Darby,  1  T.  Yorkshire,  7  Q.  B.  154;  Appleton  v. 

R.    159,    163;   Johnstone    v.   Huddle-  Murray,  8  W.R.  658  ;  Mason  i-.Bibby, 

stone,  4  B.  &  C.  932.  2  H.  &  C.  886,  Pollock,  C.  B. 

(x)  Ante,  347.  (c)  Doe  d.  Neville  v.  Dunbar,  Moo. 

(.y)  Ante,  352;  Cole  Ejec.  .32,  53.  &  M.  10;  Papillon  ?•.  Brunton,  5  H.  & 

(s)  Rogers    v.   Kingston-upon-Hull  N.  518  ;  29  L.  J.,  Ex.  265. 
Dock  Co.,  34  L.  J.,  Ch.  165.  (d)  Doe  d.  Buross  v.  Lucas,  5  Esp. 

(rt)  The    act   29  Car.  2,  c.  7,  s.  6,  153. 
m.ikes  only  writs,  &c.  void.  (e)  Roe  d.  Blair  v.  Street,  2  A.  &  E. 

(b)  Smith  V.  Clarke,  9  Dowl.  209;  328,  331  ;  Cole  Ejec.  54. 
.Jones  d.  Griffiths  v.  Marsh,  4   T.  R,  (/)  Doe   d.  Michell    v.  Levi,  Ad. 

464 ;  Roe  d.  Blair  v.  Street,  2  A.  &  E.  Ejec.  92. 
329;  Reg.  v.  Js.  of  North  Riding  of 

1  Calendar  in  United  States.     See  ante,  (a),  note. 

2  See  ante,  (d),  note,  "  Service  of  notice." 

663 


*354  DETERMINATION   OF   TENANCY.  [Ch.  YIII.  S.  7. 

ant's  hands  before  the  commencement  of  the  six  montlis  (^)  ; 
and  in  Tanham  v.  Nicholson  (A)  it  was  held  that  it  was  suffi- 
cient to  serve  the  notice  upon  a  person  whose  duty  it  was 
to  deliver  it  to  the  tenant. 

Sending  notice  by  post. — In  Papillon  v.  Brunton  («),  be- 
tween nine  and  ten  o'clock  on  the  25th  March  a  tenant  put 
into  a  post-office  in  London  a  let;^er  containing  a  notice  to 
quit  on  the  following  Michaelmas,  and  addressed  to  the 
place  of  business  in  London  of  his  landlord's  agent.  The 
agent  was  at  his  place  of  business  until  between  six  and 
seven  o'clock  in  the  evening  and  did  not  receive  the  letter, 
but  found  it  on  the  following  morning.  This  was  held  a 
sufficient  notice  to  determine  the  tenancy,  the  jury  having 
found  that  the  letter  was  delivered  on  the  25th  jNIarch,  after 
the  agent  left  (/).  If  a  notice  be  j)osted  on  one  da}-,  and 
delivered  in  due  course  of  post  on  the  next,  the  latter  is 
considered  as  the  day  on  which  it  was  sent(/c). 

Joint  tenants,  corporations,  &c.  — Service  on  one  of  several 
joint  tenants  is  prima  facie  sufficient  for  all  of  them  (Z).^ 
Service  on  a  corporation  ma}^  be  on  one  of  its  officers  (j/Oi 
and  in  the  case  of  a  company  "  incorporated  by  act  of  parlia- 
ment for  the  purpose  of  carrying  on  any  undertaking,"  the 
Companies  Clauses  Consolidation  Act,  1845  (8  Vict.  16),  pre- 
scribes by  sect.  135,  that  "any  notice"  may  be  served  "by 
being  left  at  or  transmitted  through  the  post,  directed  to  the 
principal  office  of  the  company,  or  one  of  their  principal 
offices  where  there  shall  be  more  than  one,  or  being  given 

(fj)  Alford  I'.  Vickery,  Car.  &  M.  tion  bcitiK  for  the  jury.  See  Roscoe 
280.  on  Kvidfiue,  14th  cd.  p.  029,  citing 
(//)  Ante,  .'j44.  Gresliam  House  Estate  Co.  c.  Rossa 
(/)  Papillon  V.  Brunton,  5  TT.  &  N.  Grande  IMininK  Co.,  5  W.  N.  1870. 
f)18  ;  20  L.  J.,  Ex.  205.  Tiiis  ease  does  (/.-)  Reg.  v.  Recorder  of  Richmond, 
not  decide  tiiat  mere  posting  amounts  E.,  R.  &  E.  253  (notice  of  charge- 
to  a  service  in  law;  it  seems,  how-  ability  of  i)auper) ;  Tew  r.  Harris,  11 
ever,  that  a  notice  to  quit,  if  posted  Q.  R.  7  (notice  of  appointment  of 
i-o  as  to  be  delivered  in  due  time,  will  referee). 

be  presumed  to  have  been  so  deliv-  (/)  Doe    v.  Watkins,   7    East,  551; 

ered,  but  that  the  ])resuMipti()n  may  Doe  v.  Crick,  5  Esp.  100. 

be  rebutted  by  proof  that  the  notice  (m)  Doe  i;.  Woodman,  8  East,  228. 
was  not  in  fact  received  —  the  ques- 

1  Sec  (iiitr,  (d),  note,  "  Service  of  notice." 

5C4 


On.  VIII.  S.  7.]  NOTICE   TO  QUIT.  *355 

personally  to  the  secretaiy,  or  if  there  be  no  secretary,  then 
by  being  given  to  any  one  director  of  the  company." 

Agricultural  tenants.  —  As  to  whether  notice  to  quit  may 
be  served  by  register(-d  letter  under  s.  28  of  the  Agricultural 
Holdings  Act,  see  p.  337,  ante. 

*  Indorsement  of  service.  —  A  proper  indorsement  [*355] 
of  the  service  should  be  made  in  the  usual  course  of 
business,  which  will  be  admissible  in  evidence  after  the  death 
of  the  witness  (w). 

Proof  of  notice.  —  It  is  not  necessary  to  prove  the  signature 
to  the  notice  (o)  ;  nor  to  produce  the  attesting  witness  (if 
any  ( j^))  ;  nor  to  give  notice  to  produce  the  original  notice 
served  (5').  The  regular  service  of  a  notice  to  quit,  held  to 
have  been  properly  inferred  from  the  circumstance  of  the 
tenant  speaking  about  "the  notice  to  quit  which  he  had  re- 
ceived," and  engaging  a  valuer  to  value  his  rights  as  an  out- 
going tenant  (r).  But  a  party  who  is  driven  to  rely  on  such 
evidence  should,  as  a  matter  of  precaution,  give  a  notice  to 
produce  the  notice  to  quit,  describing  its  contents  fully  (s). 

(f)     Waiver  of  Notice. 

Creation  of  new  tenancy  by  waiver.  —  A  notice  to  quit  can 
be  waived,  and  a  new  or  continual  tenancy  created,  only  by 
the  express  or  implied  consent  of  both  parties  (ty.  "  There 
is  this  difference  between  a  determination  of  a  tenancy  by  a 
notice  to  quit  and  a  forfeiture ;  in  the  former  case  the  ten- 
ancy is  put  an  end  to  by  the  agreement  of  the  parties,  which 
determination  of  the  tenancy  cannot  be  waived  without  the 
assent  of  both ;  but  in  the  case  of  a  forfeiture  the  lease  is 
voidable  only  at  the  election  of  the  lessor :  in  the  one  case 
the  estate  continues  though  voidable,  in  the  other  the  ten- 

(«)  Doe  d.  Patteshall  v.  Turford,  3  (p)  C.  L.  V.  Act,  1854,  s.  26. 

B.  &  Ad.  890;  Stapylton  v.  Clouo-h,  (q)  Ante,  353  (0. 

2  E.  &  B.  933;    Smith  L.  &   T.  328  (;)  Doe  d.   Simpson  v.  Hall,  5  M. 

(2nd  ed.).  &  G.  795. 

(o)  Forman  v.  Dawes,  1  Car.  &  M.  (s)  Cole  Ejec.  160. 

127.  (/)  Cole  Ejec.  55. 

1  Waiver  of  notice  is  usually  a  question  for  the  jury.  "Whitney  v.  Swett, 
22  N.  H.  10,  14. 

565 


*356  DETERMINATION   OF    TENANCY.  [Ch.  VIII.  S.  7. 

ancy  is  at  an  end'*  («f).  By  a  notice  to  quit  given  to  a  ten- 
ant from  year  to  year,  his  tenancy  is  determined  on  the  expi- 
ration of  the  current  year ;  and  a  waiver  of  the  notice  creates 
a  new  tenancy,  taking  effect  on  the  expiration  of  the  old 
one  (r). 

Guarantee  for  rent  ceases.  —  A  guarantee  for  the  rent  will 
not  extend  to  such  new  tenancy  (:c). 

Waiver  by  acceptance  of  rent  or  distress.  —  If  a  landlord 
receive  rent  due  after  the  expiration  of  a  notice  to  quit,  it  is 
a  waiver  of  that  notice  (?/),  and  a  distress  for  such  rent  is 
also  a  waiver :  but  the  landlord  may  receive  or  distrain  for 
rent  at  any  time  after  the  giving  of  the  notice,  so  long  as  this 
be  done  before  the  expiration  of  it.^ 

Even  after  the  expiration  of  the  notice,  where  rent  is 
usually  paid  at  a  banker's,  if  the  banker,  without  any  special 
authority,  receive  rent  accruing  after  such  expiration,  the 
notice  is  not  thereby  waived  (2) :  so  if   the  money  be  not 

paid  o"  received  as  rent^  but  as  a  satisfaction 
[*356]   *  for  the  injury  done  by  the  tenant  in  continuing  on 

the  premises  as  a  trespasser,  it  will  not  have  such  an 
operation  (a).  But  where  the  money  is  expressly  faid  as 
rent^  the  landlord  cannot,  under  protest  or  otherwise,  receive 
it  only  as  compensation  for  subsequent  occupation  :  such  pay- 
ment and  receipt,  notwithstanding  the  protest,  will  operate 
as  matter  of  law  to  Avaive  all  forfeitures  then  known  to  the 
landlord  (^).  A  demand  of  rent  accruing  subsequently  to 
the  expiration  of  a  notice  to  quit  is  not  necessarily  a  waiver 

r«)  Blyth  V.  Dennett,  13  C.  B.  178,  (z)  Doe  d.  Ash  v.  Calvert,  2  Conip. 

180;  22  L.  J.,  C.  1'.  79,  80;  Dundy  v.  387. 
Nicholl,  4  C.  B.,  N.  S.  381.  (a)  Goodriglit  d.  Cliarter  v.  Cord- 

(.t)  Tayleur  v.  Wildin,  L.  R.,  3  Ex.  went,  0  T.  R.  220;  Zouch  d.  Ward  v. 

303;  37  L.  J.,  Ex.  173.  Willinfralo,  1  II.  Blac.  311. 

(//)  Goodriglit  d.  Charter  v.  Cord-  (/>)  Croft  i\  Lumley,  5  E.  &B.648; 

went,  G  T.  R.  219;  Croft  v.  Lutnley,  G  II.  L.  Cas.  G72. 
&  E.  &,  B.  048 ;  G  II.  L.  Ca.s.  072. 

'  Receipt  of  rent  accrued  at  expiration  of  notice,  even  after  hrinj^infj 
ejectment,  docs  not  waive  notice.      Laxton  v.  Rosenberg,  11  Ont.  100. 

In   Kilzpatrick  v.  Childs,  2  lirews.  (I'a.)  30.'),  it  was  said  that  wltethcr  tlie^ 
receipt  of  rent  waived  the  notice  depended  on  the  quo  animo,  and  hehl  that  an 
unauthorized  receipt  of  rent  hy  lessor's  agent  was  not  u  waiver. 

6GG 


Ch.  VIII.  S.  7.]  NOTICE   TO   QUIT.  *356 

of  the  notice,  but  is  a  question  of  intention  which  ought  to 
be  left  to  the  juiy  (<?). 

"Waiver  by  giving  second  notice.  —  Generally  speaking,  giv- 
ing a  second  notice  to  (juit  amounts  to  a  waiver  of  a  notice 
previously  given  (t^)  ;  ^  but  a  good  parol  notice  to  (|uit  will 
not  be  waived  by  a  subsequent  insuflicient  notice  in  writ- 
ing (e).  Where  a  landlord  gave  a  notice  to  quit  different 
parts  of  a  farm  at  different  times  which  the  tenant  neglected 
to  do  in  part,  in  consequence  of  which  the  landlord  com- 
menced an  ejectment ;  and  before  the  last  period  mentioned 
in  the  notice  was  expired,  the  landlord,  apprehending  that 
the  witness  by  whom  he  was  to  prove  the  notice  would  die, 
gave  another  notice  to  quit  at  the  same  respective  times  in 
the  following  year,  but  continued  to  proceed  with  his  ejects 
ment,  it  was  held  that  the  second  notice  was  not  a  waiver  of 
the  first  (/).  If,  after  the  expiration  of  a  notice  to  quit, 
the  landlord  give  the  tenant  a  fresh  notice,  that  unless  he 
quit  in  fourteen  days,  he  will  be  required  to  pay  double 
value,  the  second  notice  is  no  waiver  of  the  first  (//)  :  so  if  a 
landlord  give  notice  to  his  tenant  to  quit  at  the  expiration  of 
the  lease,  and  the  tenant  hold  over,  and  a  second  notice  be 
delivered  to  the  tenant,  after  the  expiration  of  such  notice, 
"'■to  quit  on  a  subsequent  day  or  to  pay  double  rent;"  it  is 
no  waiver  of  the  first  notice  (li). 

By  other  acts.  —  If  the  landlord  has  given  notice  to  quit,^ 
and  the  tenant  holds  over,  the  landlord  cannot  waive  his 
notice  and  distrain  for  rent  subsequently  accruing  (J). 
Where  a  three   months'   notice   was  given,  the  rent  being 


(c)  Blyth  V.  Bennett,  13  C.  B.  178 ;  (9)  Doe  d.  Digby  ;•.  Steel,  3  Camp. 

Doe  d.  Cheny  r.  Batten,  Cowp.  243.  117  ;  Doe  d.  Godsell  v.  Inglis,  3  Taunt. 

{d)  Doe   d.  Brierly    v.  Palmer,  16  64;  Blyth  v.  Dennett,  13  C.  B.  178. 
East,  53.  (A)  Messenger  v.  Armstrong,  1  T. 

(e)  Doe  d.  Ld.  Macartney  v.  Crick,  R.  53. 
5  Esp.  196.  (/)  Jenner  v.  Clegg,  1  Moo.  &    R. 

(/)  Doe  J.Williams  i;.  Humphrey,  21.");  Alford  v.  Vickery,  1  Car.  &  M. 

•>  East,  237.  280;  Williams  v.  Stiven,  9  Q.  B.  14. 

1  A  new  notice,  inconsistent  with  former  notice,  waives  it.     O'Neill  i'. 
Cahill,  2  Brews.  (Pa.)  357. 

2  Simple  failure  to  expel  a  tenant  after  notice,  even  though  for  more  than 
a  year,  is  not  a  waiver.     Boggs  v.  Black,  1  Binn.  (Pa.)  333. 

667 


"357  DETERMINATION    OF   TENANCY.         [Ch.  VIII.  S.  7. 

reserved  quarterly,  and  tlie  landlord  expressed  neither  his 
assent  nor  dissent  to  admit  it,  and  took  the  rent  up  to  the 
time  when  his  tenant  quitted ;  it  was  construed  to  be  such 
an  acquiescence  as  amounted  to  presumptive  evidence  that 

the  parties  intended  to  dispense  with  the  notice,  and 
[*357]  was  therefore  deemed  a  waiver  of  it  (/r).     *  If  at  the 

end  of  the  year  (wliere  there  has  been  a  tenancy 
from  year  to  year)  the  landlord  accept  another  person  as  his 
tenant  in  the  room  of  the  former  tenant,  without  any  surren- 
der in  writing,  such  acceptance  is  a  dispensation  of  the  notice 
to  quit  (Z).  Where  a  landlord  of  premises  about  to  sell 
them,  gave  his  tenant  notice  to  quit  on  the  11th  October, 
1806,  but  promised  not  to  turn  him  out  unless  they  were 
sold;  and  not  being  sold  till  February,  1807,  the  tenant 
refused,  on  demand,  to  deliver  up  possession  ;  on  ejectment 
brought,  it  was  held  that  the  promise  (which  was  performed) 
was  no  waiver  of  the  notice,  as  it  did  not  operate  as  a  licence 
to  be  on  the  premises,  otherwise  than  subject  to  the  landlord's 
right  of  acting  on  such  notice,  if  necessary ;  and,  therefore, 
that  the  tenant  not  having  delivered  up  possession  on  de- 
mand after  a  sale,  was  a  trespasser  from  the  expiration  of 
the  notice  to  quit  (on').  Where  a  landlord  gave  his  tenants 
a  good  parol  notice  to  quit  at  old  Michaelmas,  but  at  the 
same  time  said  that  if  it  would  be  any  convenience  to  them 
he  would  permit  them  to  occupy  till  Christmas,  and  that 
they  should  pay  no  rent ;  and  one  of  the  tenants  expressed 
himself  well  satisfied  and  grateful  for  the  indulgence ;  after 
which  a  written  notice  was  served  on  the  tenants  to  quit  at 
Christmas :  it  was  held,  that  an  ejectment  commenced  after 
Christmas  might  be  maintained  upon  the  parol  notice  to  quit 
at  old  Michaelmas  (n).  Where  a  tenant  gave  notice  of  his 
intention  to  quit  at  Michaelmas,  but  before  that  time  offered 
to  continue  tenant  at  a  reduced  rent,  which  the  landlord 
agreed  to,  provided  he  could  not  find  another  tenant  at  a 
better  i-ent  before  the  12tli  day  of  August  then  next;  but 

(k)  Sliirlcy  v.  Newman,  ]  Ksp.  200.  (m)  WIiitoncriM/.  IJoult  r.Symoiids, 

(I)    Sparrow    v.    Ilawkes,   2     Esp.       10  East,  !•'!,  K!. 
005.  («)  Doi-  d.  Lil.  Macartiioy  v.  Crick, 

5  Esp.  11)0. 

6G8 


Ch.VIII.  S.8.]        OPTION   TO   DETERMINE   LEASE.  *3o8 

before  that  day  the  tenant  refused  to  permit  a  third  person, 
who  contemplated  taking  tlie  farm,  to  go  over  it :  it  was 
held,  that  the  coruUtional  agreement  for  a  new  tenancy  was 
thereby  determined,  and  that  the  iiotice  to  quit  at  Michael- 
mas remained  in  force  and  would  sui)port  an  ejectment  (o). 


Sect.  8.  — JExercise  of  Option  to  determine  Lease. 

Form  of  proviso.  —  A  lease  is  often  made  for  a  term  of 
years  subject  to  a  proviso  or  power  therein  contained,  ena- 
bling either  (or  one)  of  the  parties  to  determine  it  at  an 
earlier  period  by  notice,  &c.  For  instance,  the  lease  may  be 
for  twenty-one  years,  determinable  at  the  end  of  the  first 
seven  or  fourteen  years  by  either  party  (or  by  the 
lessee)  upon  *giving  [twelve]  calendar  months'  pre-  [*358] 
vious  notice,  &c.  (^).  Sometimes  a  proviso  of  this 
sort  is  framed  very  strictly  as  regards  the  tenant  by  making 
it  a  condition  precedent  on  his  part  not  only  to  give  the 
notice,  but  also  to  pay  and  perform  all  rent  and. his  cove- 
nants. The  consequence  of  this  is,  that  in  case  of  any  breach 
of  covenant  the  lessee  is  unable  to  tletermine  the  lease  at  the 
end  of  the  lirst  seven  or  fourteen  years,  in  pursuance  of 
the  proviso :  his  power  to  do  so  being  conditional  only,  and  the 
condition  not  having  been  performed  (^).  Such  conditions 
should  be  carefully  considered,  on  behalf  of  the  tenant, 
before  the  lease  is  executed. 

Form  of  notice. -- Where  a  power  is  given  to  a  party  to 
determine  a  lease  on  giving  a  notice  in  ivritiwj^  he  cannot 
determine  it  by  giving  a  parol  notice  (r).  The  notice  need 
not  refer  to  the  power  (s),  but  must  end  with  the  first  seven 
or  fourteen  years,  or  other  specified  period,  according  to  the 
terms  of  the  proviso,  and  not  at  any  other  time  (0,  and  must 

(o)  Doe  d.  Marquis  of  Hertford  v.  Toinkinson,  1  II.  &  N.  195 ;  and  corn- 
Hunt,  1  M.  &  W.  G90.  pare  post.  Chap.  IX.,  Sect.  2. 

{]))  See  form  of  proviso,  post,  Ap-  (r)  Legg  (/.  Scott  y.  Benion,  Willes, 

pendix  B.,  Sect.  13.  43. 

(c/)  Friar    v.    Grey    (in    error),    5  (s)  Giddens  ;•.  Dodd,  3   Drew.  485  ; 

Exch.    584,  597;   4    H.  L.  Cas.  565;  25  L.  J.,  Cli.  451. 

Friar  v.  Grey,  15  Q.  B.  891;  Porter  (0  Cadby  v.  Martinez,  11  A.  &  E. 

V.  Shepherd,  G    T.  R.  605 ;  Jervis  v.  720 ;  3  P.  &  D.  386 ;  Bird  v.  Baker,  1 

509 


*359  DETEKMINATION    OF   TENANCY.        [Cii.  VIII.  S.  8. 

be  to  quit  all  the  demised  premises  and  not  part  only  (u). 
The  Lxndlord  may  however  reserve  to  himself  the  right  to 
determine  the  lease  by  notice  as  to  all  or  any  part  of  the 
land  which  he  may  want  for  building  purposes  (x)  ;  and  after 
the  stipulated  notice  has  been  given,  if  possession  be  refused, 
the  landlord  may  maintain  ejectment  (y). 

Option  -whether  -writh  lessor  or  lessee.  —  If  a  lease  be  granted 
for  "  seven,  fourteen  or  twenty -one  years,"  the  lessee  only 
has  the  option  of  determining  it  at  the  end  of  the  first  seven 
or  fourteen  years  (z).  But  a  demise  for  twenty-one  years 
"  determinable  nevertheless  in  seven  or  fourteen  years  if  the 
said  parties  hereto  shall  so  think  fit,"  is  determinable  only 
by  the  consent  of  both  the  parties,  although  it  may  have  been 
their  intention  to  give  the  option  to  either  of  them  (a). 

Notice  by  executors,  &c.  —  Where  the  demise  was  for 
twenty-one  years,  and  it  was  stipulated  that  if  either  party 
should  die  before  the  end  of  the  said  term,  then  the  heirs, 
executors,  &c.,  of  the  person  so  dying  should  give  twelve 
months'  notice  to  quit,  &c.,  it  was  held,  that  the  lease  could 
only  be  determined  by  twelve  months'  notice  given  by  the 
representatives  of  the  party  dying  before  the  end  of  the 
term ;  and  consequently,  that  such  notice  given  by 
[*359]  the  lessor  to  the  representatives  of  the  lessee  *(who 
died  during  the  the  term)  did  not  determine  the 
lease  (/>).  A  proviso  in  a  lease  for  twenty-one  years,  that  if 
either  of  the  parties  shall  be  desirous  to  determine  it  in  seven 
or  fourteen  years  it  shall  be  lawful  for  either  of  them,  his 
executors  or  administrators^  so  to  do,  upon  twelve  months' 
notice  to  the  other  of  them,  his  heirs,  executors  or  adminis- 
trators, extends  by  reasonable  intendment  to  the  devisee  of 

E.  &  E.  12 ;  28  L.  J.,  Q.  B.  7  ;  Jones  (^)  Doc  d.  Wilson  r.  Abel,  2  M.  & 

V.  Nixon,   1    H.  &  C.  48;   31    L.  J.,  S.  541. 

Ex.  505;  Sliarp  v.  Milligiin,  22  Ik'uv.  (:)  Dann  v.  Spurrier,  3  Bos.  &  V. 

612.  3t1(),  442;  Doe  d.  Webb  v.  Dixon,  9 

(h)  Doe  d.  Rodd  v.  Archer,  14  East,  Enst,  1.') ;  Eallor  v.  Robins,  ](!  Ir.  Ch. 

245,  248.     See  form  of   notice,  ]>ost,  R.  422. 
Appendix  C,  No.  8.  («)  Fowell  v.  Frantz,  3  II.  &  C.  458  ; 

(x)  See  form  of  proviso.  Appendix  34  L.  J.,  Ex.  6. 
B.,  Setrt.  23  ;  also  form  of  notice  to  (/))  Legg  d.  Scott  v.  Benion,  Willes, 

take  part,  Id.,  Sect.  24.  43. 

570 


Cu.  VIII.  S.  8.]         OPTION   TO    DETERMINE    LEASE.  *359 

the  lessor,  he  being  entitled  to  the  rent  and  reversion  (c). 
Where  a  lease  for  twenty-one  years  contained  a  proviso  that 
in  case  either  the  landlord  or  tenant,  or  their  respective 
heirs,  executors  or  administrators,  wished  to  determine  it  at 
the  end  of  the  first  fourteen  years,  and  should  give  six 
months'  notice  in  writing  under  his  or  their  respective  hands, 
the  term  should  cease :  it  was  held,  that  a  notice  to  quit 
signed  by  ttvo  onl>/  of  three  executors  of  the  lessor,  to  whom 
he  had  bequeathed  the  freeholds  as  joint  tenants,  was  not 
good  under  the  proviso,  although  -such  notice  purported  to 
be  given  on  behalf  of  all  the  executors  —  the  proviso  requir- 
ing the  notice  to  be  given  "  under  the  respective  hands  "  of 
all  of  them  (c^). 

Landlord's  option  —  delivery  of  notice,  •when  tenant  absconds. 
—  If  the  option  be  in  the  landlord,  and  the  proviso  for 
notice  should  stipulate,  not,  as  is  usual  and  pro]3er,  that  it 
should  be  left  on  the  demised  premises,  but  that  it  should 
be  delivered  to  the  tenant,  great  difficulties  may  arise.  In 
Hogg  V.  Brooks  (e),  the  proviso  was  that  the  lease  might  be 
determined  by  the  landlord  or  his  assigns  "  delivering  to  the 
tenant  or  his  assigns  six  months'  previous  notice  in  writing." 
The  tenant  mortgaged  the  premises  by  way  of  sub-lease,  and 
disappeared.  A  notice  was  sent  to  his  last  known  address, 
and  also  to  the  mortgagee,  and  was  also  left  on  the  demised 
premises,  which  the  mortgagee  had  sublet.  It  was  ruled  by 
Mathew,  J.,  that  these  notices  were  ineffectual  to  support 
an  action  of  ejectment  by  the  assignee  of  the  reversion 
against  the  tenant  of  the  mortgagee,  on  the  ground  that  the 
lease  provided  for  direct  service  upon  the  lessee  or  his 
assigns,  and  the  mortgagee  was  onl}^  a  subtenant,  and  this 
ruling  was  confirmed  by  the  Court  of  Appeal  (e). 

No  bail  in  ejectment  after  such  notice.  —  When   a  lease   has 

(c)  Roe  d.  Bamford  v.  Hayley,  12  (p)   Uogg  v.  Brooks,  L.  R.  15  Q.  B. 

East,  464.  1).  250,  C.  A.,  affirming  Mathow,  J. ; 

{(l)   Right   d.  Fisher  v.  Ciithell,  5  14Q.  B.D.  475.    Perhaps  this  decision 

East,  491;    2   Smitii,  83;    recognized  may  be  open  to  queston  on  tlie  ground 

and  distinguislied  in  Doe  d.  Aslin  v.  that  a  mortgagee  by  demise  is  not  only 

Summersett,   1    B.    &  Ad.    135,    141.  teclmieally  an  "  assign,"  but  also  prac- 

See  also  Turner  v.  Hardy,  9  M.  &  W.  tically  an  assignee. 
770. 

671 


*360  DETERMINATION    OF   TENANCY.         [Ch.  VIII.  S.  9. 

been  determined  by  notice  pursuant  to  a  proviso  in  that 
behalf,  and  the  hindlord  brings  ejectment,  he  cannot  compel 
the  tenant  to  find  sureties  to  pay  the  costs  and  damages, 
pursuant  to  15  &>  16  Vict.  c.  73,  s.  213  (/)  ;  nor  can  any 
accruing  or  subsequent  rent  be  recovered  after  any  such 
determination  ((/). 


[*360]  *  Sect.  9.  —  Disclaimer.'^ 

Parol  by  lessee  for  years,,  insufficient.  —  It  is  a  general  rule 
that  the  tenant  commits  a  forfeiture  if  he  disclaim  and  deny 
his  landlord's  title  (A).  But  a  denial  by  parol  of  a  landlord's 
title  does  not  cause  a  forfeiture  of  a  lease  for  a  term  certain, 
whether  under  seal  or  not  (z)  ;  nor  will  payment  to  a  third 
person  of  the  rent  reserved  by  such  lease  (A;).  Where  a 
tenant  for  five  years  delivered  up  possession  of  the  demised 
premises  and  of  the  lease  in  fraud  of  his  landlord,  to  a  per- 
son claiming  under  a  hostile  title,  with  the  intention  of  ena- 
bling him  to  set  up  such  title  and  not  to  hold  under  the  lease  : 
it  Avas  held,  that  the  term  was  thereby  forfeited  (Z).  But 
that  case  turned  upon  the  fraud  of  the  tenant,  and  can  only 
be  sustained  on  that  ground.  All  the  other  cases  in  the 
books  of  forfeiture  by  disclaimer  have  been  by  matter  of 
record  (w).  Any  person  who  obtains  possession  from  the 
tenant  or  subtenant,  by  an  arrangement  made  with  him, 
whether  by  collusion  or  otherwise,  but  without  any  deed  of 
assignment  or  sub-lease,  \vill  not  be  permitted  to  defend  such 
possession  by  proof  of  a  title  aliunde,  but  will  be  estopped 
from  denying  the  landlord's  title  in  like  manner  as  the  tenant 


(/)  Doc  (I.  Cardigan  v.  Roo,  1  D,  &  E.  427  ;    Kecs    d.  Powell  v.  King, 

&  K.  540  ;  Doe  d.  Cundey  v.  Sliarpley,  Forrest,  11) ;  Cole  Ejee.  42. 
15  M.  &  W.  558.     As  to  the  evidence  (h)   Doe  d.   Dillon  v.  Parker,  Gow, 

in  sucli  action,  see  Cole  Ejee.  ;5!)(».  180;    Doe    d.    Williams    v.   Pasquali, 

(r/)   Furnivali  v.  (Jrove,  8  C.  B.  N.  Peake,  I'M',. 
S.  4!)(;;  .10  L.  J.,  C.  P.  8.  (/)   Doe  d.  Kllenbrock  v.  Flynn,   1 

(/()  Bac.Abr.  tit.  Leases  and  Terms  C,  M.  &  K.  i;57. 
for  Years  (T.  2).  (w)   Per   Lord    Denman,  C.  J.,  in 

(0  Doe  d.  Graves  v.  Wells,  10  A.  Gregg  v.  Wells,  10  A.  &  E.  427. 


*  See  a7itc,  sec.  5  (a),  note,  "  Disavowal  of  lessor's  title. 

572 


Cii.  VIII.  S.  9.]  DISCLAIMER.  *361 

or  subtenant  would  have  l)een  had  he  remained  in  posses- 
sion (w). 

Disclaimer  by  tenant  from  year  to  year.  —  A  discLaimer  by  a 
tenant  from  year  to  year  of  the  title  of  his  landlord,  or  of  the 
person  for  the  time  being  entitled  to  the  immediate  reversion 
as  assignee,  heir,  devisee,  executor  or  administrator  of  the 
landlord,  will  operate  an  a  waiver  hy  the  tenant  of  the  usual 
notice  to  quit,  and  will  in  effect  determine  the  tenancy  at  the 
election  of  the  landlord  or  other  person  so  entitled  (p) ; 
for  "  a  notice  to  quit  is  only  requisite  where  a  tenancy  is 
admitted  on  both  sides,  and  if  a  defendant  denies  the  tenancy 
there  can  be  no  necessity  to  end  that  which  he  says  has  no 
existence  "  (^). 

What  amounts  to  disclaimer.  —  It  is  sometimes  a  nice  ques- 
tion whether  what  has  taken  place  does  or  does  not  amount 
to  a  disclaimer  of  the  tenancy.  It  is  difficult,  if  not  imj)os- 
sible,  to  reconcile  all  the  cases  on  this  point.  But 
the  *  result  of  them  seems  to  be,  that  if  a  tenant  from  [*361] 
year  to  year  use  any  expressions  which,  being  reason- 
ably construed  with  reference  to  the  circumstances  under 
which  they  were  uttered  or  written,  amount  to  a  denial  of 
the  existence  of  any  tenancy  as  between  him  and  the  claim- 
ant, such  expressions  amount  to  a  disclaimer,  and  render  a 
notice  to  quit  unnecessary  (r).  On  the  other  hand,  if  the 
expressions  used  cannot  under  the  circumstances  be  reason- 
ably construed  to  amount  to  such  a  denial,  they  will  not 
operate  as  a  disclaimer  nor  render  a  notice  to  quit  unneces- 
sary (s).     In  order  to  make  either  a  verbal  or  written  dis- 

(n)  Doe  cl.  Buller  v.  Mills,  2  A.  &  vert  r.  Frowd,  4  B'wg.  560;   Doe  d. 

E.  17  ;  Doe  d.  Haden  v.  Burton,  9  C.  Phillips  v.  RoUinsis,  4  C.  B.  188,  200; 

&  P.  254  ;   Doe  d.  Thomas  v.  Shad-  Doe  d.  Jefferies  r.  Wiiittick,  Gow,  195. 

well,   7   Dowl.  527  ;    Cole  Ejee.  215,  (r)  Cole  Ejec.  41  ;  Doe  d.  Calvert 

216.  V.  Frowd,  4  Bing.  560;  Doe  d.  Grubb 

(p)   Doe  (/.  Bennett  v.  Long,  9  C.  &  v.  Grubb,  10  B.  &  C.  816 ;  Doe  d.  Ben- 

P.  77:5;  Doe  d.  Grubb  v.  Grubb,  10  B.  nett  v.  Long,  9  C.  &  P.  773;  Doe  d. 

&C.810;  Doe  d.  Phillips  v.  Rollins,  4  Hughes  v.  Bucknell,  8  C.  iS;  P.  566; 

C.  B.  188;    Doe  d.  Davies  v.  Evans,  Doe  d.  Whiteliead   v.  Pittnian,  2  N. 

9  M.  &  W.  48 ;    Doe  d.  Landsell  v.  &  M.  673 ;  Doe  d.  Davies  v.  Evans,  9 

Gower,  17  Q.  B.  589;  Vivian  v.  Moat,  M.  &  W.  48  ;  Doe  d.  Phillips  v.  Rol- 

L.  R.  16  Ch.  D.  730;  50  L.J.  Ch.  331 ;  lings,  4  C.  B.  188,  200;  Doe  d.  Land- 

44  L.  T.  210 ;  29  W.  R.  504,  per  Fry,  J.  sell  v.  Gower,  17  Q.  B.  589. 

(g)  Per  Best,  C.  J.,  in  Doe  d.  Cal-  (s)  Cole  Ejec.  41 ;  Doc  d.  Lewis  v. 

673 


*362  DETERMINATION    OF   TENANCY.  [Cii.  VIII.  S.  9. 

claimer  sufficient,  it  must  amount  to  a  direct  repudiation  of  the 
relation  of  landlord  and  tenant,  or  to  a  distinct  claim  to  hold 
possession  of  the  estate  upon  a  ground  wholly  inconsistent 
with  that  relation,  which  by  necessary  implication  is  a  repu- 
diation of  it  (i).  "-A  disclaimer,  as  the  word  imports,  must 
be  a  renunciation  by  the  party  of  his  character  of  tenant, 
either  by  setting  up  a  title  in  another  or  by  claiming  title  in 
himself  («<)  ;  and  it  was  held  to  be  a  disclaimer  where  the 
tenant  wrote  a  letter  disputing  the  landlord's  right  to  raise 
the  rent,  but  offering  to  pay  a  customary  rent,  as  being  all 
that  the  tenant  was  liable  to  pay  (x-).  But  a  very  slight 
matter,  not  really  intended  as  a  repudiation,  will  sometimes 
be  construed  as  a  repudiation,  in  order  to  defeat  an  objection 
of  a  technical  nature  (^). 

Refusal  to  pay  rent.  —  A  refusal  to  pay  rent  to  a  devisee  in 
a  will  which  is  contested  is  not  a  disavowal  of  the  title  of 
such  devisee.  But  where  the  defendant  held  premises  under 
a  tenant  for  life,  on  whose  death  possession  was  claimed  and 
rent  demanded  by  the  heir  at  law  of  the  devisor ;  whereupon 
the  defendant  wrote  to  the  attorney  of  the  heir  at  law,  stat- 
ing that  he  held  as  tenant  to  J.  S.  (the  husband  of  the  tenant 
for  Hfe)  in  right  of  his  wife ;  that  he  had  never  considered 
the  claimant  as  the  landlord  of  the  house  ;  and  that  he 
should  l)e  ready  to  pay  the  arrears  to  any  person  who  should 
be  proved  to  be  heir  at  law ;  but  that  he  must  decline  taking 
upon  liimsclf  to  decide  upon  the  claim  made  on  him  without 
more  satisfactory  proof  in  a  legal  manner ;  it  was  held,  that 
this  letter  amounted  to  a  disclaimer  of  the  title  of  the  heir 

at  law,  and  that  he  might  maintain  ejectment  against 
[*362]  the  tenant  without  *  giving  him  a  previous  notice  to 

quit  (z).     A  remainderman,  after  the  death  of  tenant 

Earl  Cawdor,  1  C,  M.  &  R.  ;]98  ;  Doe  (»)    Prr  'I'indal,  C.  J.,  in   Doe  d. 

(I.  Williams  r.  Cooper,  1  M.  &  G.  loo;  Williams  v.  Cooiht,  1   M.  &  G.  1:^5; 

1  Seott,  N.  H.  :}();   Doe  fl.  Williams  (•.  Jones   v.  Mills,   10  C.  B.,  N.  S.  788, 

J'as<|uali,  I'eake,  2.V.)  (.'Inl  ed.)  ;  Hunt  IW),  HOI  ;    Vivian  r.  Moat,  44  L.  T. 

r.  AIIkooiI,  10  C.  H.,  N.  S.  2'y.l ;  Jones  210. 
V.  Mills,  Id.  788.  (x)   Vivian  v.  Moat,  tihi  supra. 

(I)  Doe  <■/.  Grey  v.  Stanion,  1  M.  &  (*/)   Doe  </.  Davics  v.  Evans,  6  M. 

W.    095,    70:5 ;    Doe    d.    Williams    r.  &  W.  48. 

Cooper,  Hunt  i:  Allgood,  and  Jones  (i)   Doe    d.    (Calvert    v.    Frowd,   4 

V.  Mills,  supra.  Bing.  557  ;   1  Moo.  &  1*.  480. 

674 


Cii.  VIII.  S.  9.]  DISCLAIMER.  *362 

for  life  who  had  made  a  voidable  lease,  applied  for  rent  to 
the  tenant,  who  at  first  did  not  refuse  to  pay,  but  after  some 
negotiation  did  so,  saying  that  he  understood  that  another 
person  was  entitled  to  the  estate  ;  lield  that  the  remainder- 
man might  maintain  ejectment  without  notice  to  quit  or 
demand  of  possession,  there  being  a  disclaimer  of  the  re- 
mainderman's title  (a).  Where  several  persons  joined  in 
letting  land,  and  it  was  agreed  that  the  rent  should  be  paid 
to  an  agent  for  them,  and  afterwards  one  of  the  lessors,  to 
whom  alone  in  fact  the  land  belonged,  demanded  rent  of  the 
tenant,  who  said  "  you  are  not  my  landlord :  "  it  was  left  to 
the  jury  to  say  whether  he  intended  that  the  relation  of  land- 
lord and  tenant  did  not  exist  between  them  or  merely  that 
the  rent  was  to  be  paid  to  the  agent  (^).  An  attornment  by 
a  tenant  from  year  to  year  to  a  third  person  amounts  to  such 
a  disclaimer  of  the  landlord's  title  as  will  enable  him  to  main- 
tain ejectment  without  any  notice  to  quit  (c).  "I  have  no 
rent  for  you,  because  A.  B.  has  ordered  me  to  pay  none." 
This  is  evidence  of  a  disclaimer  of  the  tenancy  (c:?).  In 
another  case  the  defendant  had  for  several  years  occupied  a 
cottage  as  tenant  from  week  to  week  to  one  M.,  and  after  the 
death  of  M.  the  defendant  continued  to  pay  his  rent  weekh^ 
to  certain  persons  to  whom  M.  had  devised  the  premises. 
The  devise  being  discovered  to  be  void  by  reason  of  the 
Mortmain  Act,  the  heir  at  law  of  M,,  by  his  agent,  demanded 
the  rent.  The  defendant  said  that  he  had  received  notice 
from  the  other  party  and  ivould  not  pay  any  more  rent  until  he 
kneio  who  was  the  riyht  owner.  It  was  held,  that  this  did  not 
amount  to  a  disclaimer  or  repudiation  of  the  title  of  the  heir 
at  law  so  as  to  entitle  him  to  eject  the  defendant  without  any 
notice  to  quit  (c). 

Date  of  disclaimer.  —  Where  a  disclaimer  is  relied  on,  it 
must  a})pear  to  have  been  made  before  or  on  the  day  men- 
tioned in  the  writ  of  ejectment  as  the  time  when  the  claimant 

(«)  Doe  d.  Phillips  v.  Rollings,  4  (</)   Doe  d.  Whitehead  v.  Pittinan, 

C.  B.  188.  2  N.  &  M.  673. 

(In)  Doe  d.  Bennett  v.  Long,  9  C.  &  (e)  Jones  v.  Mills,  10  C.  B.,  N.  S. 

P.  773.  788. 

(c)  Throgmorton     v.     Whelpdale, 
Bull.  N.  P.  90  ;  Cole  Ejec.  42. 

575 


*363  DETERMINATION   OF  TENANCY.      [Cii.  VIII.  S.  10. 

was  entitled  to  possession  (/).  But  where  the  defendant  by 
his  agent,  on  26th  June,  answered  an  application  for  rent  by 
saying  that  his  "  connection  as  tenant  with  the  late  John 
Grubb,  Esq.  (through  whom  the  plaintiff  derived  his  title), 
has  ceased  for  several  years,  and  that  he  now  pays  his  rent  to 
his  brother ; "  this  was  held  to  be  evidence  of  a  disclaimer  of 
title  before  the  \st  May  (on  which  day  the  demise  was  laid  in 

the  ejectment),  and  rendered  any  notice  to  quit  un- 
[*363]  necessar}^  (^^).    In  ejectment  against  two  *  persons  as 

landlord  and  tenant,  an  admission  by  the  tenant,  after 
action  brought,  of  an  attornment  by  him  to  tlie  landlord  hav- 
ing taken  place  before  the  day  from  which  possession  was 
claimed  in  the  ejectment,  was  held  sufficient  evidence  of  a 
disclaimer  as  against  both  the  defendants  (/i)- 

Waiver  of  disclaimer.  —  A  disclaimer  may  be  waived  by  any 
act  of  the  landlord  acknowledging  the  party  as  his  tenant  at 
a  later  period,  as  by  a  distress  for  subsequent  rent  (z). 


Sect.  10.  —  Death. 


Death  of  tenant.  —  A  tenancy  does  not  determine  by  the 
death  of  the  lessee,  but  will  vest  in  his  legal  personal  repre- 
sentatives, who  are  entitled  to  give  or  receive  the  usual 
notice  to  quit  (/c). 

Death  of  landlord.  —  So  it  will  not  determine  by  the  death 
of  the  lessor  (Z),  unless  he  was  only  a  tenant  for  his  own  life, 
and  the  demise  was  not  made  in  pursuance  of  any  power  or 
statute  (w)'  And  even  in  such  case  the  tenant,  if  the  hold- 
ing be  agricultural,  is  entitled  (in  lieu  of  emblements  («))  ^^ 


( f)  Doe  if.  licwis  V.  Earl  Cawdor,  1.3;  Parker  d.  Walker  r.  Constable,  •" 

1  C,  M.  &  R.  ;581) ;  4  Tyrw.  852  ;  Doe  Wils.  25  ;  James  v.  Dean,  11  Ves.  .S!)l  ; 

d.  Bennett  r.  Lontr.  9  C.  &  V.  77;5.  Rex  r.  Stowe,  (i  T.  R.  21)5,  208;  Doe 

(.7)   Doe  (I.  Gnilib  r.  Grubb,  10  B.  d.  Hull  v.  Wood,  14  M.  &  W.  082. 

&  C.  810.  (/)  jNIaddon  d.  Baker  v.  White,  2 

(//)  Doe   (/.   Mee  r.   Litlierland,  4  T.  R.  150 ;  Cole  Ejec.  31. 

A.  &  E.  784.  (m)  Doe  <I.  Thomas  v.  Roberts,  10 

(/)   Doe    d.    David   v.   Williams,  7  M.itW.  77S:   Doe  r/.  Kirby  r.  Carter, 

C.  &  P.  .322.  Ry.  &  Moo.  2.!7. 

(k)   Maokay  v.  Maekreth,  4  Douj:.  (h)   Kelly  r.   Webber,  11  Ir.  Com. 

213;   Doe  d.  Shore  r.  Porter,  ;J  T.  M.  E.  Rep.  57. 


Ch.  VIII.  S.  10.]  DEATH.  *363 

hold  the  demised  premises  until  the  end  of  the  then  current 
year  of  the  tenancy  (o). 

"When  term  limited  conditionally.  —  Sometimes  a  lease  is' 
granted  for  a  certain  term  of  years,  if  the  lessee  sliall  so  long 
live ;  in  which  case  it  will  determine  either  at  the  end  of  the 
specified  term  or  upon  the  death  of  the  lessee,  which  shall 
first  happen  (j»). 

Death  of  cestui  que  vie.  —  When  a  person  holds  for  the  term 
of  another's  life  he  is  called  tenant  pur  autre  vie ;  leases  made 
by  him  of  course  determine  on  the  death  of  the  cestui  que 
vie,  or  person  for  whose  life  he  holds,  or  at  the  end  of  the 
then  current  year  of  the  tenancy  (q) :  but  not  on  his  own 
death;  and  a  lease  by  him  may  be  made  to  commence  on  his 
own  death  (q}.  We  have  already  considered  how  a  tenant 
pur  autre  vie  may  be  compelled  to  produce  his  cestui  que 
vie,  if  living  ((/). 

(o)  14  &  15  Vict.  c.  25,  s.  1 ;  post,  (p)  Ante,  Chap.  IV.,  Sect.  3. 

Appendix  A.,  Sect.  4.  (q)  Ante,  148. 

577 


[*364]  *  CHAPTER  IX. 


OF  THE  RENEWAL  OF  LEASES,  AND  OF  THE  EXERCISE 
OF  AN  OPTION  TO  PURCHASE. 


1.  Covenants  to  renew  —  vvheth-  4.  Renewal  by  Trustees  in  their 

er  perpetual  or  not   .     .     .     364  own  Names 369 

2.  Forfeiture  of  Right  to  renew    367       5.  Renewal   without   Surrender 

3.  Renewal  by  Minors,  Lunatics  of  Sub-leases 371 

and  Married  Women     .     .     369      6.  Exercise  of  Option   to   pur- 
chase   373 


Sect.  1.  —  Covenants  to  renew  —  whether  perpetual  or  not. 

Construction  of  covenants.  —  Some  nice  points  occur  in  the 
books  concerning  the  construction  of  covenants  for  the  re- 
newal of  leases ;  the  question  in  general  being  Avhether  the 
renewed  lease  is  to  contain  a  similar  covenant  for  renewal, 
so  giving  a  right  of  renewal  for  ever.^  Covenants  for  re- 
newal of  leases  are  considered  as  real  agreements,  and  go 

^  Covenants  of  renevral.  —  Covenants  for  renewal  will  not  be  construed 
to  create  perpetuities  if  it  can  be  avoided.  Syms  v.  Mayor  of  New  York,  105 
N.  Y.  158  ;  Rutgers  v.  Hunter,  6  Johns.  Ch.  (N.  Y.)  215 ;  Banker  v.  Braker,  9 
Abb.  New  Cases  (N.  Y.)  471. 

A  covenant  to  renew  does  not  imply  insertion  of  covenant  to  renew,  Pig- 
got  V.  Mason,  1  Paige  (N.  Y.)  412 ;  nor  does  covenant  to  renew  with  similar 
covenants,  Carr  v.  Ellison,  20  Wend.  (N.  Y.)  178  ;  Muhlenbrinck  v.  Pooler, 
40  Hun  (N.  Y.)  526. 

It  implies  same  term  and  rent,  Kent,  Chan.,  in  Rutgers  v.  Hunter,  6  Johns. 
Ch.  (N.  Y.)  215,  218;  M'Coun  v.  Clian.  in  Willis  v.  Astor,  4  Edw.  Ch.  (N.  Y.) 
594,  595  ;  Cunningliam  v.  Pattee,  99  Mass.  248;  but  not  necessarily  the  same 
covenants  generally  in  new  lease,  Rutgers  v.  Hunter;  Willis  v.  Astor,  supra. 

A  privilege  of  "  further  term,"  of  one,  two,  and  three  years,  entitles  at  most 
to  one  term  for  three  years.     Austin  v.  Stevens,  38  Ilun  (N.  Y. )  41. 

In  case  of  alternative  covenant  to  renew  after  valuation  of  premises,  less 
improvements,  by  arbitrators,  or  to  pay  for  improvements,  tlie  court  (liolding 
it  could  not  enforce  arbitration)  awarded  damages.  Hopkins  v.  Oilman,  22 
Wis.  476. 

Under  covenant  of  perpetual  renewal,  tenant  cannot  do  anything  to  impair 
value  of  security.     Crowe  v.  Wilson,  65  Md.  479. 

Subject  to  that,  he  may  tc:\r  down,  build  up,  alter,  or  remodel,  as  ho 
pleases  (^per  Bryan,  J.,  in  Wilson  v.  Crowe). 

578 


Cii.  IX.  S.  1.]  COVENANTS   TO   RENEW.  *365 

with  the  hind,  and  therefore  will  affect  even  the  legal  in- 
terest of  those  who  take  the  estate  with  notice  of  such 
leases  and  covenants  (a)  :  but  a  covenant  for  perpetual  re- 
newal, entered  into  by  a  person  having  a  limited  interest 
in  lands,  does  not  bind  the  estate ;  and  therefore,  if  his 
assignee  acquire  the  inheritance,  it  is  not  bound  by  the  cove- 
nant (5).  A  covenant  for  renewal,  which  is  so  framed  as  to 
create  a  perpetuity  in  the  heirs  of  the  body  of  a  particular 
person,  is  invalid  (c). 

Running  with  land.  —  It  has  been  already  stated  that  a 
covenant  for  renewal  runs  both  with  the  reversion  and  the 
land  (<'<?) . 

Ordinarily  not  held  perpetual.  —  The  leaning  of  the  courts 
is  against  perpetual  renewals  (t?)  ;  and  therefore,  in  order  to 
establish  this  construction,  the  intention  must  be  unequiv- 
ocally expressed,  and  a  proviso  in  general  terms,  that  the 
lease  to  be  granted  shall  contain  the  same  covenants  and 
agreements  as  the  lease  containing  the  covenant,  has  been  re- 
peatedly held  not  to  extend  to  the  covenant  for  renewal  (e). 
An  agreement  in  a  lease  for  lives,  that  upon  the 
renewing  or  inserting  of  any  life  or  lives,  a  *  certain  [*365] 
sum  shall  be  paid  by  the  lessee,  his  heirs  and  assigns, 
to  the  lessor,  his  heirs  and  assigns,  does  not  amount  to  a  cove- 
nant for  perpetual  renewal  (/).  A  covenant  in  a  lease  of 
land  for  ninety-eight  years,  that  the  lessor  will  from  time  to 
time  renew  the  lease,  and  perfect  such  other  assurances  as  the 
lessee  should  reasonably  require  for  strengthening,  confirm- 
ing and  sure-making  the  demised  premises,  at  such  rents, 
and  under  such  covenants  and  conditions,  as  in  the  lease 
were  contained,  is  not  a  covenant  for  perpetual  renewal  (</). 


(rt)  Earl  of  Shelburne  v.  Biddulph,  (cc)  Ante,  1G.3  (y)  and  (::). 

6  Bro.  P.  C.  363.  (d)  Baynham  v.  Guy's  Hospital,  3 

(b)  Brereton  v.  Tuohey,  8  Ir.  Ch.  Ves.  298. 

R.  190 ;  Postlcthwaite  v.  Lewthwaite,  (e)   4   Jarm.  Free.  394   (3rd  ed.)  ; 

2  J.  &  H.  237  ;  31  L.  J.,  Ch.  584  ;  and  Tritton  r.  Foote,  2  Bro.  C.  C.  636 ;  2 

see  Trumper  v.   Truniper,  L.  R.,  14  Cox,  174. 
Eq.  295;  41  L.  J.,  Ch.  295.  (/)  Smyth  i;.  Nangle,  7  CI.  &  Fin. 

(c)  Hope  V.  Mayor,  &e.,  of  Glouces-  405 ;  1  West,  184. 

ter,  7  be  G.,  M.  &  G.  647;  25  L.  J.,  (,/)  Browne  v.  Tiglic,  2  CI.  &  Fin. 

Ch.  145.  .396. 

579 


*365  RENEWAL   OF   LEASES.  [Ch.  IX.  S.  1. 

Where  one,  in  consideration  of  bl.  8s.  in  nature  of  a  fine, 
and  of  a  yearly  rent  of  6s.  9c?.  demised  certain  ground,  with 
the  buildings,  &c.,  for  twenty-one  years,  with  a  proviso  for 
distress  if  the  rent  were  in  arrear  for  fourteen  days ;  and 
the  lessor  covenanted  at  the  end  of  eighteen  yeais  of  the 
term,  or  before,  on  request  of  the  lessee,  to  grant  a  new 
lease  of  the  premises  "  for  the  like  fine,  for  the  like  term  of 
twenty-one  years,  at  the  like  yearly  rent,  with  all  covenants, 
grants,  and  articles,  as  in  that  indenture  were  contained : " 
it  was  held,  that  this  covenant  was  satisfied  by  the  tender  of 
a  new  lease  for  twenty-one  years,  containing  all  the  for- 
mer covenants  except  the  covenant  for  future  renewal  (Ji). 
Where  a  lessor  covenanted  to  renew  the  lease  at  the  request 
of  the  lessee  within  the  term ;  and  the  lessee  did  not  request, 
but  his  executors  did;  Lord  Macclesfield,  C,  ordered  the 
lessor  to  renew  the  demise  of  the  premises  for  twentj'-one 
3'ears,  that  being  the  usual  term,  but  said  that  though  the 
new  lease  was  to  be  made  on  the  same  covenants,  yet  that 
that  did  not  take  in  a  covenant  for  renewing  («').  In  another 
case,  premises  were  demised  for  three  lives  and  for  twenty- 
one  years  after  the  death  of  the  last  survivor.  The  lessor 
covenanted  with  the  lessee  that  if  he  should  lose  a  life  and 
think  proper  to  have  a  new  life  put  in,  then,  within  six 
months  after  the  death  of  the  first  life,  and  so  on  continuing 
the  term  and  estate  thereby  demised,  the  lessor  would  put 
in  a  new  life ;  it  was  held,  that  the  lessee  had  power  to 
introduce  one  new  life  only,  and  that  one  in  the  place  of 
the  first  life  dropping,  but  with  a  new  term  of  twenty-one 
years,  commencing  with  the  death  of  the  survivor  of  the 
two  survivors  and  the  new  life  (/r). 

Also  in  Swinburne  v.  Milburn  (/)  a  right  of  renewal  was 
held  not  to  be  perpetual,  but  to  bv^;  a  riglit  of  renewal  as 
often  as  any  of  three  lives  should  drop,  but  the  covenant  in 
this  case  was  so  special,  that  a  reference  thereto  is  considered 
sufficient. 

(/()  Ipgulden  V.  May,  7  East,  2;]7 ;  (/ )    Walmcsloy  v.    Pilkington,   35 

2  New  K.  449;  9  Vcs.  .SSI.  licav.  302. 

(/)    Hide   V.    Skinner,   2   V.   Wnis.  (/)  L.  R.,  9  App.  Cas.  844  ;  54  L. 

VM ;  but  see  3  Atk.  448.  J.,  Q.  B.  0. 

580 


Cii.  IX.  S.  1.]  COVENANTS   TO   RENEW.  *366 

Perpetual  renewal.  —  But  although  prima  facie  a 
lessor  is  not  taken  to  have  intended  to  *  enter  into  [*3G6] 
a  covenant  for  perpetual  renewal  if  there  are  in  the 
lease  expressions  indicative  of  such  an  intention,  the  High 
Court  will  give  effect  thereto  (jn).  Thus,  where  a  lease  for 
lives  contained  a  covenant  on  the  death  of  either  of  the 
cestui  que  vies  to  execute  a  renewed  lease  at  the  same  rent, 
and  subject  to  the  same  covenants,  "including  this  present 
covenant:"  it  was  held,  that  this  was  a  covenant  for  per- 
petual renewal,  and  that  the  lessee  was  entitled  to  have 
inserted  in  tiie  renewed  lease  a  covenant  for  renewal  totldem 
verbis  with  that  contained  in  the  original  lease,  but  with  the 
name  of  the  new  cestui  que  vie  substituted  for  that  of  the 
deceased  (n).  It  was  once  held  that  a  lessor  and  his  an- 
cestors had,  by  their  own  acts  of  successive  renewal,  con- 
strued a  covenant  in  a  lease  for  lives  to  be  for  a  perpetual 
renewal,  and  that  he  was  therefore  bound  by  it  (o).  But  in 
a  subsequent  case,  this  method  of  construing  the  covenant 
by  the  equivocal  acts  of  the  parties  was  repudiated  (p). 

Renewal  to  one  of  two  lessees.  —  One  of  two  lessees  has 
no  single  right  of  renewal  (^). 

Breach  of  covenant  to  "  endeavour "  to  renew.  —  If  a  lease 
for  ninety-nine  years,  determinable  on  three  lives,  be  con- 
veyed in  trust  for  A.  for  life,  and  A.  covenant  to  use  his 
utmost  endeavours,  as  often  as  any  of  the  persons  on  whose 
lives  the  premises  are  held  shall  die,  to  renew  the  same  by 
purchasing  of  the  lord  of  the  fee  a  new  life  in  the  room  of 
such  as  shall  fail,  it  is  no  breach  of  the  covenant,  if  upon 
one  of  the  lives  failing  he  procure  a  renewal  upon  his  own 
life  (r).  A  sum  falling  short  of  three  years'  annua.1  value  of 
premises,  calculated  on  the  rack  rent,  is  not  an  unreasonable 
fine  for  the  renewal  of  a  lease  by  the  Duchy  of  Cornwall ; 
and  therefore  the  lessee  having  covenanted  in  a  sub-lease  to 

(m)  Hare  v.  Burgess,  4  K.  &  J.  45;  Yes.  298;   Eaton  v.  Lyon,  Id.  004; 

27  L.  J.,  Ch.  80  ;  liridges   r.    Hitch-  Iggulden  v.  May,  9  Vcs.  331 ;  7  East, 

cock,  1  Bro.  P.  C.  522 ;   Furnival  v.  237 ;  2  New  R.  449. 

Crewe,  3  Atk.  83.  {q)  Finch  r.  Underwood,  45  L.  J., 

(w)  Hare  v.  Burgess,  supra.  Ch.  522 ;  post,  308. 

(o)  Cooke  V.  Booth,  Cowp.  819.  "        (?•)  Scudamore  v.  Stratton,  1  Bos, 

Ip)  Baynham  v.  Guy's  Hospital,  3  &  P.  455. 

581 


*367  RENEWAL   OF   LEASES.  [Ch.  IX.  S.  2. 

do  his  utmost  endeavours  to  procure  a  renewal  of  the  letters- 
patent,  on  either  of  three  cestui  que  vies  dying,  commits  a 
breach  of  his  covenant  by  not  paying  such  a  fine  demanded 
for  a  renewal  (s). 

Trust  for  renewal.  —  Under  a  trust  to  renew  leases  out  of 
the  rents,  issues  and  profits,  followed  b}^  a  power  to  mortgage 
in  case,  from  any  cause,  the  money  wanted  to  pay  the  fines 
should  not  be  produced  by  the  ways  and  means  aforesaid,  it 
was  held  that  the  rents  being  sufficient  for  that  purpose,  the 
fines  ought  to  be  paid  out  of  the  income  (^).  A  trust  for 
renewal  fails  if  renewal  be  impossible  («<). 


[*367]       *  Sect.  2.  —  Forfeiture  of  Right  to  renew. 

By  not  applying  in  time.  —  Where  it  was  covenanted  that 
the  lessor  would  renew  whenever  any  life  or  lives,  dropped, 
provided  that  if  the  lessee,  his  executors  or  administrators, 
upon  or  after  the  death  of  an}^  of  the  life  or  lives  should 
refuse  or  neglect  to  renew  the  said  lease,  or  make  applica- 
tion therein,  or  tender  such  new  lease,  and  pay  or  tender  a 
certain  fine,  then  the  indenture  should  be  void ;  it  was  held, 
that  the  lessee  forfeited  his  right  of  renewal  for  not  appl3-ing 
Avhen  the  first  life  dropped  (.r).  But  where  a  lease,  for 
sixty-one  years,  of  house  property  contained  a  covenant  that 
the  lessee  might  renew,  on  certain  terms,  at  the  end  of  each 
and  every  term  of  fourteen  years,  on  giving  ten  days'  notice 
of  such  his  desire ;  and  the  lessee,  or  those  claiming  under 
him,  continued  in  possession  after  the  two  first  terms  of  four- 
teen years  each  had  expired,  and  then,  before  the  expiration 
of  the  third  fourteen  years,  desired  to  renew :  held,  that  the 
lessee  was  not  precluded,  by  liis  not  having  given  notice 
earlier,  from  claiming  his  right  to  liave  a  renewed  lease  in  the 
terms   of   the   covenant  (2/).     A  covenant  in  a  corporation 


(.s)  Simpson  v.  Clayton,  4  Bing.  N.  (r)  Bnynham  i-.  Guy's  Hospital,  3 

C.  7G8.  Vfs.  2!tr);  Eaton  I'.  Lyon,  Id.  0!M), 

(0  Sollcy  V.  Wood,  20  Beav.  482.  (>i)  Hogg  i-.  Midland  K.  Co.,  L.  1?., 

(n)  Maddy  v.  Hale,  45  L.  J.,  Ch.  4  Eq.  310,  313 ;  30  L.  J.,  Ch.  440. 


791. 


582 


Cii.  IX.  S.  2.]       FORFEITURE   OF  RIGHT  TO   RENEW.  *368 

lease  to  renew  upon  the  falling  in  "  of  one  life  for  ever,"  can- 
not be  extended  to  the  case  where  two  are  suffered  to  fall  in, 
although  a  compensation  be  offered  (z).  Where  A.  and  B. 
covenanted  in  a  lease  for  sixty-one  years,  that  at  any  time 
within  one  year  after  the  expiration  of  twenty  years  of  that 
term,  upon  the  request  of  the  lessee  and  his  paying  6Z.  to  the 
lessors  they  would  execute  another  lease  of  the  premises  for 
the  further  term  of  twenty  years,  to  commence  from  the 
expiration  of  the  said  term  of  sixty-one  years,  &c.,  and  so  in 
like  manner  at  the  end  of  every  twenty  years  during  the  said 
term  of  sixty-one  years,  for  the  like  consideration  and  upon 
the  like  request,  would  execute  another  lease  for  the  further 
term  of  twenty  years,  &c.,  to  commence  at  the  expiration 
of  the  term  then  last  before  granted,  &c. ;  it  was  held, 
that,  under  this  covenant,  the  lessee  could  not  claim  a 
further  term  at  the  end  of  the  last  term  of  twenty  years  in 
the  lease,  where  he  had  omitted  to  claim  a  further  term  at 
the  end  of  the  first  and  second  twenty  years  in  the  lease  (a). 
Where  a  lease  renewable  for  ever  had  expired  by  the  drop- 
ping of  the  lives,  so  that,  in  fact,  only  a  tenancy  from  year 
to  year  existed;  but  the  owner  in  fee  of  the  land,  the 
tenants,  and  their  subtenants,  had  all  been  acting  for  years 
on  the  terms  of  the  lease,  which  was  at  length  dul}^  renewed : 
held,  that  no  one  of  them  could  subsequently  set  up 
in  *  equity  claims  adverse  to  the  several  characters  [*368] 
they  bore  under  such  lease  and  the  sub-lease  (5). 

Non-performance  of  covenants.  —  Where  the  lessee  has  not 
performed  his  covenants  to  repair  and  insure,  the  court  will 
not  decree  a  specific  performance  of  a  perpetual  covenant  to 
renew  "provided  the  rent  should  have  been  j)aid  and  the 
covenants  kept "  (c).  So  where  the  covenant  was  to  renew 
at  the  end  of  the  term  "  if  it  should  not  be  sooner  determined 
by  the  lessee's  acts  or  defaults "  (f?).  The  covenant  to 
renew  in  case  the  lessee's  covenants  are  duly  performed  is 
construed  strictly  against  the  lessee,  and  will  not  be  specifi- 

(z)  3  Bro.  C.  C.  529.  (c)  Job  v.  Banister,  2  Kay  &  J.  374 ; 

(«)  Rubery  v.  Jervoise,  1  T.  R.  229.  26  L.  J.,  Ch.  125. 

(6)  ArchboUl  v.  Scully,  9  H.  L.  Cas.  {d)  Thompson    r\   Guyon,   5    Sim. 

360.  65 ;  cited  2  K.  &  J.  381. 

583 


*368  RENEWAL   OF   LEASES.  [Ch.  IX.  S.  2. 

cally  enforced  if  the  lessor  have  a  right  of  action  for  the 
breach  of  covenant  to  repair,  although  the  want  of  repair  be 
but  small.  If  there  be  any  repairs  wanted  at  all,  the  lessee 
should  have  them  done  before  applying  to  the  court.  This 
was  held  in  Finch  v.  Underwood  (e).  In  Bastin  v.  Bid- 
well  (/),  the  same  strictness  was  observed.  There  the  cove- 
nants were  by  the  lessee  to  paint  inside  and  outside  at  cer- 
tain fixed  periods,  and  by  the  lessor  that  the  lessee  should  be 
entitled,  "  on  giving  six  months'  notice  before  the  expiration 
of  the  term,"  to  have  a  further  lease  "  upon  the  lessee  pay- 
ing the  rent  and  performing  and  observing  the  covenants  of 
this  present  lease."  Neither  when  the  six  months'  notice 
■was  given  nor  when  it  expired  had  the  requisite  painting 
been  completed.  Kay,  J.,  held  that  the  performance  of  the 
covenant  to  paint  was  a  condition  precedent  to  the  right  of 
renewal,  but  left  the  point  open  whether  the  condition  would 
have  been  complied  with  if  the  painting  had  been  completed 
at  the  time  that  the  notice  was  given.  One  of  two  lessees 
has  no  single  right  of  renewal  (^^).  Where  there  was  a  lease 
for  twenty-one  years  at  1?.  rent  within  covenant  to  the  tenant 
to  renew  from  twenty-one  years  to  twenty-one  years,  to  make 
up  ninety-nine  years ;  and  at  the  exj^iration  of  the  first  term 
an  arrear  of  rent  being  due,  and  no  a})plication  being  made 
for  a  renewal,  the  lessor  brought  an  ejectment  and  obtained 
judgment  and  possession ;  on  a  bill  filed  in  Chancery,  a 
renewal  was  decreed,  on  payment  of  the  rent  in  arrear  and 
interest ;  the  delay  being  accounted  for,  and  there  being  no 
neglect  on  the  part  of  the  lessee,  or  prejudice  to  the 
lessor  (/i). 

When  option  not  determined.  —  A.  agreed  to  let  premises  to 
B.  for  three  j^ears,  and  at  the  expiration  of  that  term  to 
grant  him  a  lease  for  an  extended  term.  A.  died,  and  three 
years  having  expired  B.  continued   to  hold  on  under  A.'s 


(e)  Finch  j-.  Undcrwoorl,  L.  R.,  2  (h)  T?awston  v.  Bentlcy,  4  Rro.  C. 

Ch.  I).  310;  46  L.  J.,  Ch.  r)22;  34  L.  P.  4lf>;  Statliam  i-.  Liverpool   Docks 

T.  770  (C.  A.).  Trustees,  3  Y.  &  J.   505;   Hunter  v. 

(/)  Bastin   v.   15i(hv(ll,    L.    R,  18  Earl  of  Hopctoun,  13  L.  T.,  N.  S.  130 

Ch."  D.  238  ;  44  L.  T.  742.  (II.  L.). 

(j/)  Finch  V.  Underwood,  supra, 

684 


Cii.  IX.  S.  4.]  KENEWAL   BY   TRUSTEES,   ETC.  *369 

executors  for  four  years  without  asking  for  a  lease. 
He  then  required  a  lease :  *  held,  that  B.'s  option  had  [*369] 
not  determined,  and  that  he  was  entitled  to  the  ex- 
tension of  the  term  (/).^ 


Sect.  3.  —  Renewal  by  3Iinors,  Lunatics  and  Married  Women. 

Renewal  in  the  case  of  minors,  &c.  —  Where  guardians  of 
minors,  married  women  and  infants  are  concerned,  and  a  re- 
newal of  leases  is  required,  existing  leases  may  be  surren- 
dered and  new  leases  granted  by  direction  of  the  Chancery 
Division  of  the  High  Court  (k)..  The  Lunacy  Regulation 
Act,  1853  (16  &  17  Vict.  c.  70),  contains  detailed  provisions 
for  renewal  to  the  committee  of  a  lunatic  tenant  (T)  and  by 
the  committee  of  a  lunatic  landlord  (w).  Where  a  person 
bound  by  covenant  to  renew  a  lease  if  required  "  at  the  cost 
and  charges  in  all  things  "  of  the  lessee,  subsequently  devised 
the  land  in  strict  settlement,  and  died  pending  the  arrange- 
ments for  a  renewal,  leaving  the  first  person  entitled  to  an 
estate  of  inheritance  under  his  will  an  infant,  so  that  it  was 
necessary  to  institute  a  suit  in  Chancery  to  obtain  a  renewal 
of  the  lease,  it  was  held,  that  the  cost  of  the  suit  must  be 
paid  out  of  the  estate  of  the  covenantor,  because  it  had  been 
rendered  necessary  by  his  own  act  done  subsequently  to  en- 
tering into  the  covenant  (n). 


Sect.  4.  —  Reneival  hy  Trustees^  <|*c.,  in  their  own  Names. 

Renewal  by  trustees.  —  A  lease  renewed  by  a  trustee  or  ex- 
ecutor in  his  own  name,  even  in  the  absence  of  fraud,  and 

(0  Moss  V.  Barton,  35  Beav.  197  ;  (/)  Sect.  118. 

L.  R.,  1  Eq.  474;  and  see  Buckland  (w)  Sect.  134. 

V.  Papillon,  L.  R.,  2  Ch.  Ap.  67 ;  36  (n)  Wortham  v.  Ld.  Dacre,  2  Kay 

L.  J.,  Ch.  81.  &  J.  437. 

{k)  11  Geo.  4  &  1  Will.  4,  c.  65,  ss. 
16,  17  ;  ante,  36. 

1  Extension  privileges.  —  These  differ  from  covenants  of  renewal  in  that 
no  formal  renewal  is  necessary.  The  tenant  manifests  his  election  by  simply 
remaining,  or  otherwise  signifies  it.  Kramer  v.  Cook,  7  Gray  (Mass.)  550 ; 
Delashman  v.  Berry,  20  Mich.  292,  298;  Sweetser  v.  McKenney,  65  Me.  225; 
HoUey  v.  Young,  m  Id.  520. 

585 


*370  RENEWAL   OF  LEASES.  [Ch.  IX.  S.  4. 

upon  the  refusal  of  the  lessor  to  grant  a  new  lease  to  the 
cestui  que  trust,  will  be  ordered  to  be  held  in  trust  for  the 
person  entitled  to  the  old  lease  (o).  The  same  rule  applies 
to  an  executor  de  son  tort  renewing  a  lease  in  his  own 
name  (jo).  Where  a  trustee  obtains  a  new  lease  which 
comprises  not  only  the  premises  in  the  original  lease,  but 
also  additional  lands,  the  trusts  will  not  attach  upon 
the  additional  lands  (j).  The  ground  of  decreeing  re- 
newals by  trustees  and  executors  to  enure  to  the 
[*370]  benefit  of  cestui  que  trusts  is  *  public  policy,  to 
prevent  persons  in  such  situations  from  acting  so  as 
to  take  a  benefit  to  themselves  (r). 

By  agents.  —  A  person  acting  as  agent,  or  in  any  similar 
capacity  for  a  person  having  an  interest  in  a  lease,  cannot 
renew  it  for  his  own  benefit  (s). 

By  tenant  for  life.  —  If  a  person  having  a  limited  interest 
in  a  renewable  lease,  as  a  tenant  for  life,  renews  it  in  his 
own  name,  he  will  be  held  a  trustee  for  those  entitled  in 
remainder  to  the  old  lease  Q}. 

By  a  person  jointly  interested.  —  If  one  of  several  persons 
jointly  interested  in  a  lease  renew  it  in  his  own  name  he  will 
hold  in  trust  for  the  others  according  to  their  respective 
shares  (ii).  And  if  a  person  jointly  interested  with  an 
infant  renew,  and  the  renewed  lease  turn  out  not  to  be 
beneficial,  the  person  renewing  must  sustain  the  loss ;  if 
beneficial,  the  infant  can  claim  his  share  of  the  benefit  to  be 
derived  from  it  (it). 

By  a  partner.  —  If  a  partner  renew  a  lease  of  the  partner- 
ship premises  in  his  own  name  and  on  his  own  account  he 
will  be  held  a  trustee  of  it  for  the  firm  (a:). 

(o)  Keech  v.  Sandford,  Select  Cas.  352;  Blewettw.Millett.TBro.T.  CHGT. 

Ch.   61;    Fitzgil)l)on    v.    Seanlan,    I  (s)  White  &  Tudor,  L.  C.  41   ('iml. 

Dow.  201  (after  twenty  year.s)  ;  Mill  ed.). 

w.  Mill,  3  II.  L.  Cas.  828;  Cooper  v.  (I)  Keech    r.    Sandford,    Wliite   & 

Phihl.s,    L.    R.,    2    II.    L.    Cas.    140;  Tudor,  41.    In  PiilUips  r.  IMiiilips,  54 

White  i;.  Tudor,  L.  C.  .30,  .37  (2nd  ed.).  L.  .J.,  Ch.  94.3,  a  tenant  for  life  wlio 

(/<)  Mulraney  v.   Dillon,   1  Ball  &  had    twice    renewed,    and    then    pur- 

B.  400;  Griffin   c.    (jriUlu,   1    Sch.    &  (;hasod    the   reversion,    was    held    to 

Lef.  .352.  hold  the  fee  thus  acquired  in  trust 

(7)  Acheson  v.  Fair,  .3  Dru.  &  W.  for  the  remaindennen. 

612  ;  2  Conn.  &  Law.  208.  (11)  Id.  .30. 

(r;  Griffin  v.  Griffin,  1   Sch.  &  Lef.  (r)  Id.  40;  Clegg  v.  Edmondson,  8 

58G 


Cii.  IX.  S.  4.]  RENEWAL   BY   TRUSTEES,    ETC.  *371 

By  a  mortgagee.  —  If  a  mortgagee  renew  a  lease  in  his  own 
name  the  renewal  is  deemed  to  he  for  the  benefit  of  the 
mortgagor,  paying  the  mortgagee  his  charges  (y/)  ;  nor  will 
the  case  be  altered  by  the  expiration  of  the  lease  before 
renewal  (z). 

By  a  mortgagor.  —  On  the  other  hand,  if  a  lessee  mortgage 
leaseholds,  and  afterwards  obtain  a  new  lease  in  his  own 
name,  the  new  lease  will  be  held  a  graft  on  the  old  one  for 
the  benefit  of  the  mortgagee  (a}. 

By  owner  of  incumbered  lease.  —  Upon  the  same  principle, 
if  a  person  entitled  to  a  lease  subject  to  debts,  legacies  or 
annuities,  renews  in  his  own  name,  the  incumbrances  will 
remain  a  charge  upon  the  renewed  lease  (6). 

Against  volunteers.  —  The  same  remedies  which  may  be 
had  against  trustees,  executors,  and  persons  with  limited 
interests  renewing  leases  in  their  own  names,  may  also  be 
had  against  volunteers  claiming  through  them  (c). 

Purchasers  with  notice.  —  And  against  purchasers  from 
them  with  notice  express  or  implied  (c).  But  the  cestui  que 
trust  may  be  barred  by  acquiescence  and  lapse  of  time  (c). 

Not  against  a  quasi  tenant  in  tail  of  leaseholds.  —  A  quasi 
tenant  in  tail  of  leaseholds  being  the  absolute  owner  of  them 
is  not  barred  by  the  same  equities  as  persons  having  merely 
limited  interests  (cT). 

Nor  against  a  stranger.  —  Where  a  stranger  obtains  a  renewal 
of  a  lease,  or  a  reversionary  lease,  the  old  tenant  has 
no   equity  against   him  (e)  ;   nor,  it  seems,   has    *  a  [*371] 
lessee  any  equity  against  his  sublessee  who  obtains 
a  renewal  from  the  head  landlord  without  consulting  him  (/). 

Sale  of  right  of  renewal.  —  If  a  person  having  a  right  of  re- 
newal sells  such  right,  the  money  produced  by  the  sale  will 

De  Gex,  M.  &  G.  787 ;  Tudor's  L.  C  (h)  White  &  Tudor  L.  C.  41   (2nd 

Merc.  L.  359  (2nd  ed.).  ed.). 

{y)  White  &  Tudor  L.  C.  40  (2nd  (c)  Id.  42. 

ed.).  {(1)  Blake  v.  Blake,  1  Cox,  266. 

(2)  Id.  40 ;   Rakestraw   v.  Brewer,  (e)  White  &  Tudor  L.  C.  44  (2nd 

2  P.  Wms.  510;  Nesbitt  v.  Treden-  ed.). 

nick,  1  Ball  &  B.  29.  (/)  Maunsell  v.  O'Brien,  1  Jones 

(a)  Smith  v.  Chichester,  1  Conn.  &  (Ir.  Ex.)  170. 
Law.  486. 

587 


*371  RENEWAL   OF   LEASES.  [Ch.  IX.  S.  5. 

be  affected  with  the  same  trusts  as  the  leaseholds,  if  renewed, 
would  have  been  (^). 

Nature  of  relief  in  equity.  —  A  trustee  who  has  renewed  will 
be  directed  to  assign  the  lease,  free  from  incumbrances,  ex- 
cept, as  it  seems,  any  lease  made  by  him  bona  fide  at  the 
best  rent  (7i)  ;  and  he  must  account  also  for  the  mesne  rents 
and  profits  which  he  may  have  received  (/),  notwithstanding 
the  lease  had  expired  before  the  action  was  brought  (/c).  But 
where  a  tenant  for  life  has  renewed,  the  account  will  com- 
mence only  from  his  decease  (Q.  On  the  other  hand,  the 
person  who  has  renewed  the  lease  will  be  entitled  to  be  in- 
demnified against  the  covenants  he  may  have  entered  into 
with  the  lessor  (w),  and  he  will  have  a  lien  upon  the  estate 
for  the  costs  and  expenses  of  renewing  the  lease,  with  inter- 
est (n),  and  for  the  expenses  of  lasting  improvements  (o), 
but  not  for  any  improvements  adopted  as  a  mere  matter  of 
taste,  or  as  matter  of  personal  convenience  (p)  ;  at  the  same 
time  there  may  be  many  charges  in  the  nature  of  waste,  and 
as  to  deterioration,  which  must  be  set  off  against  anything 
found  due  in  respect  of  improvements  (|>).  So  also  will  a 
tenant  for  life  have  a  lien  for  such  proportion  of  the  fine 
upon  renewal  as  ought  to  be  borne  by  the  remainderman  (5-). 


Sect.  5.  —  Renewal  without  Surrender  of  Sub-leases. 
Renewal  in  case  of  sub-lease.  —  By  4  Geo.  2,  C.  28,  S.  6,  after 
reciting  "  that  many  persons  hold  considerable  estates  by 
leases  for  lives  or  j^ears,  and  lease  out  the  same  in  parcels  to 
several  under-tenants ;  and  many  of  those  leases  cannot  by 
law  be  renewed  without  the  surrender  of  all  the  under-leases 
derived  out  of  the  same,  so  that  it  is  in  the  power  of  any 
such  under-tenants  to  prevent  or  delay  the  renewal  of  the 

(.7)  Wliite  &  Tudor  L.  C.  41 ;  Owen  (m)  Kcooli  v.  Sarulford,  Select  Cas. 

V.  William.s,  Ambler,  7.34.  Ch.  (11  ;  Mill  v.  Mill,  •>  II.  L.  Cas.  828  ; 

(A)  Id.   41;   Bowles  v.  Stewart,    1  White  &  Tudor  L.  C.  .30;  Geddings 

Sch.  &  Lef.  2.30.  r.  Gcddiufrs,  .3  Huss.  241. 

((■)  Id.  41.  (»)  White  &  Tudor  L.  C.  41,  42. 

(/.)  Eyre  v.  Dolphin,  2   Hall  &  B.  (<>)  Id.  42. 

200.  {]>)  Mill  V.  iNIill,  .3  II.  L.  Cas.  809. 

(/)  Geddings  v.  Geddings,  3  Huss.  (7)  White  &  Tudor  L.  C  42. 
241. 

688 


Ch.  IX.  S.  5.]        RENEWAL   WITHOUT   SURRENDER.  *372 

principal  lease  by  refusing  to  surrender  tlieir  under-leases, 
notwithstanding  they  have  covenanted  so  to  do,  to  the  great 
prejudice  of  their  immediate  landlords  the  first  lessees ; "  it 
is  enacted,  "  that  in  case  any  lease  shall  be  duly  surrendered 
in  order  to  be  renewed,  and  a  new  lease  made  and 
*  executed  by  the  chief  landlord  or  landlords,  the  [*372] 
same  new  lease  shall,  witliout  a  surrender  of  all  or 
any  the  under-leases,  be  as  good  and  valid  to  all  intents  and 
purposes  as  if  all  the  under-leases  derived  thereout  had  been 
likewise  surrendered  at  or  before  the  taking  of  such  new 
lease ;  and  all  and  every  person  and  persons  in  whom  any 
estate  for  life  or  lives,  or  for  years,  shall  from  time  to  time 
be  vested  by  virtue  of  such  new  lease,  and  his,  her  and  their 
executors  and  administrators,  shall  be  entitled  to  the  rents, 
covenants  and  duties,  and  have  like  remedy  for  recovery 
thereof ;  and  the  under-lessees  shall  hold  and  enjoy  the  mes- 
suages, lands  and  tenements  in  the  respective  under-leases 
comprised  as  if  the  original  leases,  out  of  which  the  respective 
under-leases  are  derived,  had  been  still  kept  on  foot  and  con- 
tinued ;  and  the  chief  landlord  and  landlords  shall  have  and 
be  entitled  to  such  and  the  same  remedy  by  distress  or  entry 
in  and  upon  the  messuages,  &c.,  for  the  rents  and  duties  re- 
served by  such  new  lease,  so  far  as  the  same  exceed  not  the 
rents  and  duties  reserved  in  the  lease  out  of  which  such 
under-lease  was  derived,  as  they  would  have  had  in  case 
such  former  lease  had  been  still  continued,  or  as  they  would 
have  had  in  case  the  respective  under-leases  had  been  re- 
newed under  such  new  principal  lease." 

Tlie  effect  of  this  enactment,  while  it  gives  a  lessee  the 
riglit  to  surrender  notwithstanding  his  contracts  with  his 
sub-lessee,  leaves  untouched  the  sub-contract,  though  it  is 
merely  an  agreement  for  a  sub-lease ;  and  the  effect  of  a  new 
demise  after  the  surrender  for  the  residue  of  the  original 
term  is  to  make  tlie  new  lessee  the  assignee  of  the  reversion 
of  the  terms  created  by  the  surrenderor  (r). 

Substituted  reversion  on  leases.  —  By  8  &  9  Vict.  C.  106,  S. 
9,  "when  the  reversion  expectant  on  a   lease  made    either 

(?•)  Cousins  V.  Phillips,  3  H.  &  C.  r.  Marclietti,  1  B.  &  Ad.  715;  Woot- 
892;  35  L.  J.,  Ex.  84;  Doe  d.  Palk       ley  v.  Gregory,  2  Y.  &  J.  536. 

589 


*373  RENEWAL   OF   LEASES.  [Ch.  IX.  S.  5. 

before  or  after  the  passing  of  this  act,  of  any  tenements  or 
hereditaments  of  any  tenure,  shall  after  the  said  first  day  of 
October,  1845,  be  surrendered  or  merge,  the  estate  which 
shall  for  the  time  being  confer  as  against  the  tenant  under 
the  same  lease  the  next  vested  right  to  the  same  tenements 
or  hereditaments,  shall,  to  the  extent  and  for  the  purpose  of 
preserving  such  incidents  to  and  obligations  on  the  same 
reversion  as  but  for  the  surrender  or  merger  thereof  would 
have  subsisted,  he  deemed  the  reversion  expectant  on  the 
same  lease."  The  object  of  this  enactment  was  to  do  away 
with  the  rule  that  the  covenants  of  and  remedies  against  the 
lessee,  and  the  obligations  on  the  lessor,  being  incident  to 
the  immediate  reversion,  cease  as  regards  the  land  on  the 
merger  of  that  reversion  in  another  estate  (s).  Such  rule 
was  altogether  technical,  and  generally  productive  of  in- 
justice. 
[*373]  *  "Tenant  right  of  renewal."  —  It  has  long  been  an 
established  practice  to  consider  those  who  are  in  the 
possession  of  lands  under  leases  for  lives  or  years,  particularly 
from  the  crown,  colleges,  &c.,  as  having  an  interest  beyond 
the  subsisting  term :  and  this  interest  is  usually  denominated 
"  the  tenant  right  of  renewal,"  which  though  not  any  certain 
or  even  contingent  estate,  there  being  no  means  of  com- 
pelling a  renewal,  yet  is  so  adverted  to  in  all  transactions 
relative  to  leasehold  property,  that  it  influences  the  price 
in  sales,  and  is  often  an  inducement  to  accept  of  it  in  mort- 
gages and  settlements. 

Purchase  of  reversion  by  assignee  of  mortgagor  of  term.  — 
Where  a  lease  from  a  dean  and  cliapter  was  mortgaged,  and 
the  mortgagor's  interest  assigned  to  a  person  who  afterwards 
bought  the  reversion,  and  borrowed  money  on  the  security 
of  such  reversion,  it  was  held  that  such  person,  upon  the 
Ecclesiastical  Commissioners  refusing  to  renew,  held  the  fee 
simple  upon  the  expiration  of  tlie  lease  subject  to  the  mort- 
gage of  the  lease,  so  that  the  lender  o  i  the  security  of  the 


(s)  Webb  V.  Russc-Il,  3  T.  R.  303;       r.  Earolay,   7   IMng.    74r^;    Thorn  y. 
Stokes  V.  Russell,  3  T.  R.  078  ;  Wool-       Woolcombe,  3  «.  &  Ailol.  680. 
ley  V.  Gregory,  2  Y.  &  J.  630  ;  Burton 

590 


Ch.  IX.  S.  6.]         EXERCISE   OF    OPTION   TO    PUKCHASE.  *374 

reversion  was  not  entitled  to  any  prior  lien  in  respect  of  his 
advance  (t). 


Sect.  6.  —  Exercise  of  Option  to  purchase. 

A  lease  sometimes  contains  a  clause  enabling  the  tenant, 
upon  giving  certain  notice  to  the  landlord,  to  purchase  the 
reversion.^  Such  a  clause  is  always  for  the  interest  of  the 
tenant,  as  it  binds  him  to  nothing,  and  allows  him  the  ad- 
vantage of  a  trial  of  the  demised  premises.  A  form  is  given 
hereafter  (it). 

Time  of  the  essence.  —  Time  has  been  held  to  be  of  the 
essence  of  a  stipulation  that  the  lessee  may  purchase  (x). 

Executor  receives  purchase-money.  —  The  purchase-money 
goes  to  the  lessor's  personal  representatives,  if  the  option  be 
exercised  after  the  lessor's  death  (?/) ;  and  on  the  death  of 
the  lessee,  the  option  of  purchase  goes  to  the  personal  repre- 
sentative of  the  lessee  (z). 

Sub-lease  with  option,  not  grantable  by  executor.  —  We  have 
already  seen  that  it  is  ultra  vires,  and  a  breach  of  trust,  for 
an  executor  or  administrator  to  grant  a  sub-lease  with  an 
option  of  purchase  to  be  exercised  by  the  sublessee  at  a  price 
fixed  at  the  time  of  the  grant  of  the  sub-lease  (a). 

*  Insurance  money.  —  Where  the  landlord  cove-  [*374] 
nanted  to  insure,  and  the  tenant   had  the  option  to 

(t*)  Leigh  V.  Burrell,  33  W.  R.  578.  cise  of  option,   see  Reynard   v.   Ar- 

(m)  See  post.  Appendix  B.,  Sect.  7,  nold,  L.  R.,  10  Ch.  386. 

and  see  also  Dav.  Free,  Vol.  V.,  p.  (//)  See  Weeding  v.  Weeding,  1  J. 

157.     "Lease  to   Builder's    Nominee  &  H.  424  ;  Prideaux,  45. 

of    First-Class    House    in    London,"  (s)  Adams  and  Kensington  Vestry, 

Prideaux  Free.,  Vol.  II.,  p.  44.  in  re,  L.  R.,  27  Cli.  D.  394;  54  L.  J., 

(.r)  Lord  Ranelagh  v.  Melton,  2  Dr.  Ch.  87  ;  51  L.  T.  382 ;  32  W.  R.  883 

&  Sm.  278.     And  see  the  cases  cited  (C.  A.). 

ante,  108.     As  to  reinstating  property  (a)  1   L.   R.,  16    Ch.  D.  236 ;  and 

out   of   insurance  money  after  exer-  ante,  49. 

1  Sometimes  lessee  has  an  option,  Buckwalter  v.  Klein,  2  Am.  Law  Record, 
347  ;  Langford  v.  Selmes,  3  Kay  &  Johns.  220;  and  sometimes  himself  cove- 
nants to  purchase,  Stewart  v.  L.  I.  R.  R.  Co.,  102  N.  Y.  001 ;  Bostwick  v. 
Frankfield,  74  Id.  207. 

A  covenant,  in  six  years'  lease  of  water,  reserving  right  to  sell  at  end  of 
two,  giving  lessee  first  refusal,  is  not  broken  by  sale  subject  to  lessee's  right 
to  use  water  for  entire  six  years.     Blanchard  v.  Ames,  GO  N.  H.  404. 

591 


*374  RENEWAL   OF   LEASES.  [Ch.  IX.  S.  6. 

purchase,  and  before  the  time  for  exercising  the  option  ex- 
pired the  demised  premises  were  burnt,  the  landlord  receiv- 
ing the  insurance  money ;  it  was  held  that  the  tenant,  upon 
exercising  the  option,  could  not  sustain  a  claim  to  the  in- 
surance money  as  part  of  his  purchase  (b) 

(h)  Edwards  v.  West,  L.  R.,  7  Ch.       481 ;    26   W.  R.   507,    distinguishing 
D.  858;  47  L.  J.,  Ch.  463 ;  38  L.  T.       Reynard  v.  Arnold,  L.  R.,  10  Ch.  386. 

592 


*  CHAPTER  X. 


[*375] 


RENT. 


SECT.  PAGE 

1.  Different  kinds  of  Rent     .     .  375 

2.  llescrvations  of  Kent    .     .     .  o79 

(a)  Mode  of  Reservation     .  379 

(b)  Construction  of  Reserva- 

tions        382 

(c)  To  whom  reserved     .     .  384 

(d)  Sums     in     gross,     quasi 

Rent 386 

(e)  In  Lease  of  Settled  Land  387 

3.  Penalty   or,  liquidated  Dam- 
390 


SECT.  PAGE 

4.  When  Rent  is  due    ....  394 

5.  Manner,  &c.  of  payment  .     .  39(i 
0.  Apportionment  of  Rent     .     .  400 

(a)  In  respect  of  Estate  .     .  400 

(b)  In  respect  of  Time     .     .  403 

7.  Continuance    of  Liability  in 

case  of  Fire,  &c.       .     .     .  407 

8.  Stipulation  for  Abatement  in 

case  of  Fire,  &c 410 


Sect.  1. — Different  kinds  of  Rent. 

Definition  of  rent.  —  Rent  (redclitus)  is  a  retribution  or  com- 
pensation for  the  lands  demised.  It  is  defined  to  be  a  certain 
profit  issuing  yearly  out  of  lands  and  tenements  corporeal : 
and  may  be  regarded  as  of  a  twofold  nature :  —  first,  as  some- 
thing issuing  out  of  the  land,  as  a  compensation  for  the 
possession  during  the  term ;  and,  secondly,  as  an  acknowl- 
edgment made  by  the  tenant  to  the  lord  of  his  fealty  or 
tenure  (a). 

Need  not  be  in  money,  but  must  be  certain,  and  issue  from 
thing  demised.  —  Rent  must  always  be  a  profit ;  but  there  is 
no  occasion  for  it  to  be,  as  it  usually  is,  a  sum  of  money ;  ^ 

(a)  Bradby,  24;  2  Blac.  Com.  41  ;  Co.  Lit.  142  a;  Gilb.  Rents,  9 ;  Smith  L. 
&  T.  Ill  (2nd  ed.). 

1  Rent  may  be  payable  in  money,  Irving  v.  Thomas,  18  Me,  418  ;  grain, 
Boyd  V.  McCombs,  4  Fa.  St.  146  ;  cotton,  McDougal  v.  Sanders,  75  Ga.  140 ; 
DuVdin  V.  Hill,  Id.  228;  Wadley  v.  Williams,  Id.  272;  Bridgers  v.  Dill,  97 
N.  C.  222;  hoard,  Baker  v.  Adams,  5  Cush.  (Mass.)  99;  support,  Shouse  v. 
Krusor,  24  Mo.  App.  279  ;  Roberts  v.  Sims,  64  Miss.  597  ;  taxes,  Roberts  >;. 
Sims,  64  INIiss.  597 ;  valuable  improvements.  Doe  d.  Macqueen  v.  Hunter,  1 
Kerr's  (N.  B.)  518,  &c.,  &c.  ' 

In  Van  Rensselaer  v.  Jewett,  2  N.  Y.  141,  the  rent  reserved  was  eighteen 

593 


*376  KENT.  [Ch.X.  S.  1. 

for  spurs,  capons,  horses,  corn,  and  other  matters,  may  be, 
and  oecasionall}"  are,  rendered  by  way  of  rent  (b)  :  it  may  also 
consist  in  services  and  manual  operations ;  as  to  plough  so 
many  acres  of  ground,  and  the  Hke ;  which  services,  in  the 
eye  of  the  law,  are  pro  tits  (e).  This  profit  must  also  be 
certain,  or  capable  of  being  reduced  to  a  certainty  by  either 
party,  and  must  issue  out  of  the  thing  granted,  and  not  be 
part  of  the  land  or  thing  itself,  wherein  it  differs  from  an 
exception  in  the  grant,  which  is  always  of  part  of  the  thing 
granted  (tZ). 

Royalty.  —  But  a  royalty  payable  to  a  landlord  upon  the 
bricks  which  are  made  out  of  a  brickfield  is  a  rent,  althougli 
it  is  not  paid  for  the  produce  of  the  land,  which  is  periodically 
renewed,  but  for  portions  of  the  land  itself,  which  is  gradually 

exhausted  by  the  working  (e). 
[*376]         *  Incorporeal  hereditaments.  —  The  lessee  of  tithes, 

advoAvsons  or  any  incorporeal  hereditaments,  is  liable 
to  an  action  for  the  gross  sum  or  sums  agreed  upon  for  the 
use  and  enjoyment  but  not  for  "rent"(/). 

"Standings"  for  machinery.  —  Where  the  Owner  of  a  factory 
let  "  standings  *'  in  some  of  its  rooms  for  lace-machines,  he 
himself  supplying  the  steam  power  by  which  they  were  put 
in  motion  ;  it  was  held,  that  there  was  no  demise  of  the  room, 
and  consequently  that  the  weekly  payments  reserved  could 
not  be  distrained  for,  as  rent(jg^.     But  Avhere  A.  let  to  B.  a 

(fc)  1  Inst.  142  a.  .  148  (team  work) ;  Smith  L.  &  T.  Ill, 

As  to  corn  rent,  see  881,  pout.  112  (2nd  ed.). 

(c)  Doe  d.  Edney  v.  Bcnliam,  7  Q.  (d)  Smith  L.  &  T.  112;  Bac.  Abr. 

B.  970  ((.leaninpr  church,  and  ringing  Rent  (A.). 

church    hell);    Doe    d.    Robinson    v.  (e)  Reg.  i^.  Wcstbrook,10  Q.  B.  178. 

Hinde,  2  Moo.  &  R.  441  (keeping  up  And  see  Daniel   v.  Gracie,   0    Q.    B. 

a  grindstone  ruled  with  doubt  not  to  145;  post,  349. 

be  rent);    Duke  of   Mnrlborougli   v.  (/)  Co.  Lit.  47  a ;  Gilb.  Rents,  24. 

Osborn,  5  B.  &  S.  (57  ;  •.).)  L.  J.,  Q.  B.  (q)  Hancock  v.  Austin,  14  C.  B.,  N. 

S.  r,:]4. 

bushels  of  wlieat,  four  fat  hens,  nnd  one  day's  service  with  carriage  and 
horses.  In  Fiske  v.  Kniniinghain  Man.  Co.,  14  Pick.  (Mass.)  491,  no  rent 
was  reserved  in  lease  of  mill,  but  lessee  engaged  to  manufacture  goods,  at  a 
fixed  price,  for  lessor. 

A  reservation  of  rent  is  not  essential  to  a  lease.  Failing  v.  Schcnck,  3  Hill 
(N.  Y.)  ;M4  ;  State  i;.  Page,  1  Speer's  (S.  C.)  408,  429  (/)rr  O'Neall,  J.)  ;  Jack- 
son i;.  Wheeler,  0  Johns.  (N.  Y.;  272  ;   1  Waslibiirnc  on  Real  Property,  sec.  292. 

As  to  leases  on  shares,  see  ante,  p.  20.3,  note. 

594 


Ch.  X.  S.  1.]  DIFFERENT   KINDS    OF   RENT.  *370 

defined  portion  of  a  room  in  a  factory,  with  steam-power  for 
working  lace-machines  belonging  to  B.,  at  a  certain  sum  per 
annum,  payable  quarterly,  a  deduction  to  be  allowed  in  the 
event  of  hindrances  in  the  supply  of  power  beyond  seven 
days  in  each  quarter;  this  was  held  a  sufficient  demise  to 
entitle  A.  to  distrain  (A). 

Rent-service.  —  There  are  at  common  law  three  sorts  of 
rents:  —  rent-service,  rent-charge  and  rent-seek («).  Rent- 
service  was  so  called  because  it  had  some  corporeal  service 
incident  to  it,  as,  at  the  least,  fealty  (/c).  Every  copyhold 
rent(Oi  and  every  rent  reserved  on  a  lease,  is  a  rent- 
service  (m). 

Rent-charge.  —  A  rent-charge  is  where  land  is  charged  with 
a  rent  by  deed  or  will  ivith  poiver  to  distrain  for  the  same, 
but  the  owner  of  the  rent  has  no  reversion  in  the  land:  as 
where  a  person  conveys  to  another  land  in  fee-simple,  reserv- 
ing a  certain  rent  payable  thereout,  with  a  clause  of  distress, 
that  if  the  rent  be  in  arrear  or  behind  for  a  specified  number 
of  days  it  shall  be  lawful  to  distrain  for  the  same.  In  such 
case  the  land  is  liable  to  the  distress,  not  of  common  right, 
but  by  virtue  of  the  clause  in  the  deed;  and  therefore  it 
is  called  a  rent-charge,  because  in  this  manner  the  land  is 
charged  with  a  distress  for  the  payment  of  it  (w). 

Fee-farm  rent.  —  A  fee-farm  rent  is  a  rent-charge  reserved 
on  a  grant  in  fee ;  the  name  is  founded  on  the  perpetuity  of 
the  rent  or  service,  and  not  on  the  amount  (o). 

Rent-seek.  —  Rent-seck  (redditus-siccus),  or  barren  rent,  is 
in  effect  nothing  more  than  a  rent  reserved  by  deed  or  will, 
but  without  any  clause  of  distress ;  and  differs  from  a  rent- 
charge  only  in  being  reserved  without  a  clause  of  distress  (jt?). 


(A)  Selby  V.  Greaves,  L.  R.,  3  C.  P.  (n)  Co.  Lit.  143  b ;  Gilb.  Rents,  17, 

594;   37   L.  J.,  C.  P.  251.     And  see  .38;    Bradbury   v.    Wright,    2    Doug. 

Smith  V.  Egginton,  43  L.  J.,  C.  P.  628;    Smith  L.  &  T.   113,   116  (2nd 

140;  L.  R.,  9  C.  P.  145,  30  L.  T.  521.  ed.). 

(0  Bac.  Abr.  Rent  (A.)  ;  Smith  L.  (o)    Co.  Lit.   143  b,  n.    (5)  ;   Gov- 

&  T.  112,  114  C2nd  ed.).  ernors  of  Christ's  Hospital  v.  Harriki, 

{k)  Co.  Lit.  87  b;  Gilb.  Rents,  9.  2  M.  &  G.  713,  n.;  Smith  L.  &  T.  114 

(/)    Laugher    v.    Humphrey,    Cro.  (2nd  ed.). 

Eliz.  524.  (jp)  Gilb.  Rents,  38. 

(m)  Smith  L.  &  T.  112. 

595 


*377  RENT.  [Ch.  X.  S.  1. 

A  right  to  distrain  for  rent-seek,  however,  "  as  in  the  case  of 
rents  reserved  upon  lease,"  and  also  for  rent  of  assize 
[*377]  and  *  chief  rents,  is  given  by  the  statute  4  Geo.  2, 
c.  28,  s.  5,  which  applies  to  all  rents  "duly  answered 
or  paid  for  the  space  of  three  years  within  the  space  of 
twenty  years "  before  that  session  of  parliament,  "  or  should 
be  thereafter  created."  The  three  years  mentioned  in  this 
section  need  not  be  consecutive  (^q),  and  a  fee-farm  rent  may 
be  distrained  for  if  brought  within  the  section  (r). 

Rents  of  assize,  chief-rents  and  quit-rents.  —  Rents  of  assize 
are  the  certain  established  rent  of  the  freeholders  and  ancient 
copyholders  of  a  manor,  and  which  cannot  be  departed  from: 
those  of  the  freeholders  are  frequently  called  chief-rents, 
and  both  sorts  are  indifferently  denominated  quit-rents, 
because  thereby  the  tenant  goes  quit  and  free  of  all  other 
services  (s).  Payment  of  an  unvaried  rent  for  a  long  series 
of  years  to  the  lord  of  a  manor  is  evidence  only  of  a  title  to 
the  rent  (which  is  presumed  to  be  a  quit-rent),  but  not  to  the 
land  in  respect  of  which  the  rent  is  paid  (i() ;  but  in  Weller 
V.  Stone  (w),  the  payment  of  an  "encroachment  rent"  of 
4s.  106?.  since  1811,  the  land  having  been  dealt  with  as  held 
in  fee  simple  and  built  upon  since  1805,  was  held  to  be  evi- 
dence of  a  tenancy  from  year  to  year  only,  so  that  the  plaintiff 
recovered  the  land  in  an  action  brought  in  1878  upon  a  half- 
year's  notice  to  quit;  and  it  was  further  held  that  the 
defendant  was  not  entitled  to  equitable  relief  on  the  ground 
of  his  predecessors  having  built  to  the  knowledge  of  the  pred- 
ecessors of  the  plaintiff.  For  such  relief  to  be  grantable, 
the  tenant  must  either  be  in  possession  under  a  mistaken 
belief  of  title,  which  the  reversioner  must  have  known  of 
and  stood  by,  or  the  tenant  must  have  laid  out  money  upon 
the  faith  of  an  expectation,  created  or  encouraged  by  the 
reversioner,  of  a  lease  (a;). 

(7)  Musgravo  v.  Ernorson,  10  Q.  B.  173:  here  the  rents  had  been  2s.  and 

•326.  4s.  ti(L  for  thirty-nine  yt'<ii"s. 

(r)    Id.;    Bradbury   v.    Wright,   2  (u)  fA  J..  J.  Ch.  4!)7 ;  '.V.l  W.  R.  42 

DourI.  024.  (C.  A.). 

(s)  2  Blac.  Com.  41  ;  Cilh.  RentH,  (.r)  Ramsdcn  v.  Dyson,  L.  R.,  1  II. 

38;  Co.  Lit.  144,  Ilarfr.  n.  (5).  L.  129. 

(I)  Doc  (/.  Whittick  v.  .lohn.son,  Cow, 

696 


Ch,  X.  S.  1.]  DIFFERENT   KINDS    OF   KENT.  *378 

Peppercorn  rent.  — ■  A  peppercorn  rent  is  a  nominal  rent 
not  intended  to  be  paid,  but  stipulated  for  on  the  view 
(which  is  not  correct)  ^  that  the  reservation  of  some  reiit  is 
necessary  to  constitute  a  lease.  It  is  most  frequently  found 
in  building  leases,  in  wliich  it  is  usually  reserved  for  the 
first  few  years  of  the  term  only,  during  which  the  houses 
to  be  built  will  be  in  course  of  erection  only,  and  therefore 
not  yet  profitable  to  the  lessee. 

Rent  having  no  money  value.  —  The  residue,  if  not  less  than 
200  years,  of  a  term  (not  liable  to  be  determined  by  re-entry, 
or  created  by  sub-demise)  originally  created  for  not  less  than 
300  years,  without  any  trust  for  the  freeholder,  and  without 
any  rent  "  or  with  merely  a  peppercorn  rent  or  other  rent 
having  no  money  value  "  (//)  may,  under  sect.  65  of 
the  Conveyancing  *  Act,  1881,  as  amended  by  sect.  [*378] 
11  of  the  Conveyancing  Act,  1882,  be  enlarged  into 
a  fee  simple. 

Rent  barred  by  time.  —  The  Statute  of  Limitations  (see 
chap.  xiii.  s.  1)  does  not  apply  to  rent  reserved  on  a  lease  (z)  ; 
but  the  provisions  of  the  Conveyancing  Acts  above  mentioned 
apply  also  to  cases  where  a  rent  having  money  value  has 
become  barred  by  lapse  of  time. 

Rack-rent.  —  Rack-rent  is  a  rent  of  the  full  annual  value  of 
the  tenement,  or  near  it  (a). 

Fore-hand  rents  or  fines.  —  A  fine  or  premium  given  by  the 
lessee  to  the  lessor  at  the  time  of  taking  or  renewing  a  lease 
is  in  the  nature  of  a  fore-hand  rent,  and  has  been  considered  as 
an  improved  rent  (6).  In  the  case  of  renewal  of  a  lease  by 
an  ecclesiastical  corporation,  if  an  accident,  which  has  not 
happened  from  their  fault  or  that  of  the  tenant,  delay  the 
lease,  a  new  member  coming  in  has  his  proportion  of  the 
fine  (5). 

(?/)  A  rent  so  small  as  to  be  iinsale-  (2)  Grant  v.  Ellis,  9  M.  &  W.  113. 

able,  as  a  rent  of  3s.,  has  been  held  not  (a)  2  Blac.  Com.  42. 

to  be  within  these  words  {re   Smith  (/))  Irish  Society  ;•.  Needham,  1  T. 

and  Scott,  31  W.  R.  411)  ;  but  a  rent  R.  486;  Southall  v.  Leadbetter,  3  T. 

of  "  one  silver  penny  if  demanded"  R.  461;  Wynne  v.  Bampton,  3  Atk. 

is  clearly  within   them  {re   Chapman  473. 
andHobbs,33  W.  R.  703). 

^  See  ante,  note,  "  Rent,"  &c. 

697 


*379  RENT.  [Ch.  X.  S.  2. 

Reut  payable  in  advance.  —  Sometimes  rent  is  made  pay- 
able from  quarter  to  quarter  or  otherwise  in  advance.  Such 
rent  could  not  of  course  be  recovered  in  advance  in  an 
action  for  use  and  occupation  (c),  but  a  distress  may  be 
made,^  or  an  action  maintained  for  such  rent,  as  soon  as  it 
becomes  payable,  according  to  the  terms  of  the  demise  (c?). 
The  reservation  should  be  clearly  expressed  so  as  to  make 
the  rent  payable  from  time  to  time  in  advance :  otherwise 
it  may  perhaps  be  construed  as  applicable  to  the  first  quarter 
only  (e).  Thus  where  premises  were  let,  "  the  yearly  rent 
to  be  1101.,  and  to  be  payable  in  advance  if  the  landlord 
required  the  same,"  nothing  being  said  as  to  the  days  of  pay- 
ment ;  and  af  tei'  a  quarter  had  expired  the  landlord  demanded 
a  quarter's  rent  only :  it  was  held,  that  he  was  not  entitled 
to  dis'train  for  the  whole  1101.  (/).  But  where  it  was  a 
condition  in  the  lease  of  a  farm  that  the  tenant  should  pay 
the  last  half-year's  rent  in  advance,  which  last  half-year's 
rent  should  be  considered  as  reserved  and  dae  on  the  29th 
September  preceding,  if  the  landlord  should  see  cause  for 
such  demand ;  it  was  held,  that  the  landlord  was  entitled  to 
demand  the  last  half-year's  rent,  and  to  distrain  for  it  at 
any  time  between  the  29th  September  and  the  expiration  of 
the  tenancy,  without  demand  previous  to  the  29th  Septem- 
ber (g). 


[*379]  *  Sect.  2.  —  Reservations  of  Rent. 

(a)  Mode  of  Reservation. 

Reservation  ought  to  be  sufficiently  certain.  —  The  USUal 
formal  reddendum  in  a  lease  is  not  essential.  Any  expres- 
sions showing  the  intention  of  the  parties  that  a  rent  shall 

(0  Angell  V.  Randall,  10  L.  T.  480.  101  ;  Hopkins  r.  Hclmorc,  8  A.  &  E. 

(f/)  Jc-nncT  r.  VAv^k,  1   Moo.  &  R.  40:5. 

2i:j;  Lee  i;.  Smith,  9  Exfli.002;  Mor-  (/)  Clarke  v.  Holfonl,  2  C.  &  K. 

ton  V.  Woods,  L.  H.,  3  Q.  H.  Or.8;  37  54o'. 

L.  J.,  Q.  B.  242;  Smith  L.  &  T.  218  (7)  Witty   v.  Williams,  12   W.  K. 

(2nd  c'd.).  765. 

(e)  Holland  v.  Falser,  2   Stark.  R. 

*  deepest,  ch.  11,  sec.  10,  (a),  note,  "  Distress;  when  may  be  made." 

598 


Cii.  X.  S.  2.]  RESERVATIONS    OF   RENT.  *379 

be  payable  will  be  a  sufficient  reservation  (7<).  The  reserva- 
tion of  rent,  however,  ought  to  be  certain  as  to  the  amount 
and  the  time  when  payable  (/)  ;  although  if  there  be  any- 
thing in  the  reservation  by  which  the  amount  of  the  rent 
may  be  ascertained,  this  will  be  as  good  as  if  the  sum  itself 
were  clearly  specified,  in  accordance  with  the  maxim  Id  cer- 
tum  est  quod  certuni  reddi  potest  (/c).  Thus  in  Daniel  v. 
Gracie,  the  proprietor  of  a  house,  and  of  a  marl  pit  and  Ijrick 
mine,  demised  the  house  by  unwritten  agreement  to  D.  from 
a  day  named,  and  it  was  at  the  same  time  agreed  between 
them,  without  writing,  that  D.  should  take  the  marl  pit  and 
the  brick  mine,  and  should  pay  quarterly,  at  the  usual  quar- 
ter days,  Sd.  per  solid  yard  for  all  the  marl  that  he  got,  and 
Is.  Sd.per  tJiousand  for  allthe  bricks  that  he  made.  D.  took 
the  marl  and  made  bricks  accordingly,  and  paid  the  stipu- 
lated sums  for  a  time ;  but  they  afterwards  fell  into  arrear. 
It  was  held,  that  the  agreement  for  the  marl  pit  and  brick 
mine  was  a  demise  of  the  land  from  year  to  year,  at  a  rent 
capable  of  being  ascertained  with  certainty,  for  which,  con- 
sequently, the  lessor  might  distrain  (Z). 

Rent  may  commence  before  enjoyment.  —  Rent  may  be 
reserved  to  commence  before  the  lessee  is  to  enter  upon 
the  enjoyment  of  the  land.  Thus  where  a  man  made  a 
lease  of  Blackacre  to  commence  in  futuro,  and  of  Whiteacre 
to  begin  in  prsesenti,  rendering  rent  payable  at  Michaelmas 
before  the  commencement  of  the  term  in  Blackacre  ;  it  was 
held  to  be  a  reservation  immediately ;  for  it  was  but  one 
entire  rent,  and  as  such  was  payable  according  to  the  reser- 
vation (?n).  A  subsequent  agreement  may  by  relation  oper- 
ate to  make  a  reservation  ol  rent  from  the  beginning  (?i). 

From  what  rent  must  issue.  —  Properly  speaking,  a  rent 


(h)  Gilb.    Rents,    30,   33;    Doe    d.  Gilb.  Eq.  R.  45;  Gilb.  Rents,  9,  10; 

Rains  v.  Kneller,  4  C.  &  P.  3;  Attoe  Co.  Lit.  96  a,  142  a. 

V.  Hemmings,  2  Bulstr.  281;  cited  2  (/)  Daniel  v.  Gracie,  6  Q.  B.  145; 

H.  &  C.  427.  and  see  Pollitt  v.  Forrest,  11    Q.  B. 

(/)  Parker  v.  Harris,  1  Salk.  202;  949;  Bowers  v.  Nixon,  12  Q.  B.  546; 

4  Mod.  79  ;  Lit.  s.  213  ;  Gilb.  Rents,  9.  Edmonds  v.  Eastwood,  2  II.  &  N.  811, 

(k)  Orby  V.  Mohun,  2    Vern.   531,  826. 

542  ;  2  Freera.  291 ;  3  Bro.  P.  C.  248 ;  (m)  Gilb.  Rents,  25. 

(»)  M'Leish  v.  Tate,  Cowp.  781. 

599 


*380  RENT.  [Ch.  X.  S.  2. 

can  be  reserved  out  of  no  inheritance  but  such  as  is  manur- 
able,  as  it  is  called,  or  upon  which  the  lessor  may  enter  to 
distrain  (o)  ;  a  lease  of  the  vesture  or  herbage  of  the  land 
reserving  rent  is  good,  because  the  lessor  may  come  upon 
the  land  to  distrain  the  lessee's  beasts  feeding  thereon;  but 
a  reservation  of  grass,  herbage,  or  other  vesture  of 
[*380]  the  land,  would  be  bad,  because  *  they  are  part  of 
the  thing  demised  (j?).  There  is  this  difference 
between  a  reservation,  which  is  always  of  a  thing  not  in 
being,  but  newly  created  or  reserved  out  of  the  land  or 
tenement  demised ;  and  an  exception,  which  is  ever  a  part 
of  the  thing  granted,  and  of  a  thing  in  being  (q}. 

"Where  reservations  are  entire  or  several.  —  There  is  a  differ- 
ence between  a  rent  reserved  entire,  upon  a  demise  of  sev- 
eral things  in  the  same  lease,  and  where  the  rent  is  not 
originally  reserved  entire,  but  the  reservation  is  several  and 
apportioned  to  the  several  things  demised :  for  instance,  if  a 
lease  be  made  of  several  houses,  rendering  the  annual  rent 
of  51.  at  the  two  usual  feasts  —  viz.  for  one  house  3?.,  for 
another  10s.,  and  for  the  rest  of  the  houses  the  residue  of  the 
said  rent  of  51.  —  with  a  clause  of  re-entry  into  all  the  houses 
for  non-payment  of  any  parcel  of  the  rent :  this  is  but  one 
•reservation  of  one  entire  rent ;  because  all  the  houses  were 
leased,  and  the  5?.  was  reserved  as  one  entire  rent  for  them 
all,  and  the  "viz."  afterwards  does  not  alter  the  nature  of 
the  reservation,  but  only  declares  the  value  of  each  house  (r). 
But  if  the  lease  had  been  of  three  houses,  rendering  for  one 
house  SI.,  for  another  20s.,  and  for  the  third  10s.,  with  a  con- 
dition to  re-enter  into  all  for  the  non-payment  of  any  parcel ; 
these  are  three  several  reservations,  and  in  the  nature  of 
three  distinct  demises  :  and  each  house  in  this  case  is  only 
chargeable  with  its  own  rent  (s). 

Demise  void  if  part  cannot  be  legally  demised.  —  Where 
tliere  is  a  dcmisi;  of  premises,  and  an  entire  rent  reserved,  if 
any  part  of  tlie  premises  could  not  be  legally  demised,  the 

(o)  Gill).  HcTits,  20.  (,)  Gilh.  IJonts,  34. 

(;>)  Co.  I.it.  47,  142  a;  Gill).  Rents,  (.s)  Gilb.    Keiits,    85;    Tanfield    v. 

26.  Rogers,  Cro.  Eliz.  341. 
(V)  Ante,  IGl. 

600 


Ch.  X.  S.  2.]  RESERVATIONS   OF    RENTS.  *381 

whole  demise  is  void  (^).  But  in  an  action  for  rent  upon  an 
indenture  of  demise,  a  plea  of  the  defendant  that  prior  to  the 
making  of  the  demise  the  plaintiff  had  demised  two  roods, 
part  of  the  demised  premises,  to  A.,  which  demise  to  A.  was 
still  in  force,  whereby  the  defendant  was  kept  out  of  pos- 
session of  that  part  of  the  demised  premises,  was  held  no 
answer  to  the  claim  for  the  entire  rent  reserved.  This  was 
because  the  demise  to  the  defendant,  which  was  under  seal, 
operated  as  a  lease  in  possession  of  all  that  part  of  the  lands 
of  which  the  lessor  had  the  possession  at  the  time  of  the 
demise,  and  as  a  lease  of  the  reversion,  with  the  rent  inci- 
dent thereto,  of  that  part  of  the  lands  of  which  the  lessor 
had  not  the  possession,  and  thereby  conveyed  to  the  defend- 
ant the  whole  interest  in  respect  of  which  the  entire  rent 
was  reserved  (?t). 

Reservatiozi  on  specified  days.  —  In  early  times  it  was  much 
the  practice  to  reserve  the  rent  j^ayable  on  two  alternate 
days,  as  on  the  usual  feasts  or  days  of  payment,  or  within  a 
certain  number  of  days  afterwards  (a;).  But  this 
being  found  *  to  be  attended  with  serious  inconven-  [*381] 
iences  (?/),  rent  is  now  generally  reserved  on  a  day 
certain,  with  a  proviso  for  re-entry  on  non-payment  within  a 
specified  number  of  days  after  the  day  appointed. 

Rent  in  advance.  —  If  rent  is  intended  to  be  paid  in  ad- 
vance (2'),  the  reservation  should  be  clearly  expressed. 

Corn-rent.  —  A  restriction  occurs  with  regard  to  college 
leases,  created  by  statute  18  Eliz.  c.  6  (^a),  by  which  it  is 
directed  that  one-third  of  the  old  rent  then  paid  should  for 
the  future  be  reserved  in  wheat  or  malt,  reserving  a  quarter 
of  wheat  for  each  6«.  8^7.,  or  a  quarter  of  malt  for  every  5.s-., 
or  that  the  lessees  shovdd  pay  the  same  according  to  the 
price  that  wheat  and  malt  should  be  sold  for  in  the  market 
next  adjoining  to  tlie  respective  colleges,  on  the  market  day 
before  the  rent  becomes  due.     This  sagacious  plan  is  said  to 

(/)  Doe  d.  Griffith  v.  Lloyd,  3  Esp.  10   Co.  R.  127;    Biggin   v.  Bridge,  3 

78.  Keb.  534. 

(m)  Eccl.    Coinmrs.   of    Ireland   v.  (2)  See  the  eases  atile,  378. 

O'Connor,  9  Ir.  Com.  L.  R.  242.  («)  This    statute    is    specially   ex- 

(x)  Anon.,  2  Show.  77.  empted  from  the  operation  of   39  &, 

(y)  Gilb.  Rents,  52,  53 ;  Clan's  case,  40  Geo.  3,  c.  41,  by  sect.  7  of  that  act. 

601 


*382  RENT.  [Ch.  X.  S.  2. 

have  been  the  invention  of  Lord  Treasurer  Burleigh  and  Sir 
Thomas  Smith,  then  principal  Secretary  of  State ;  who, 
observing  how  greatly  the  value  of  money  had  sunk,  and  the 
price  of  all  provisions  risen,  by  the  quantity  of  bullion  im- 
ported from  the  newly-found  America,  devised  this  method 
for  upholding  the  revenues  of  colleges.  Their  foresight  and 
penetration  have  in  this  respect  been  very  apparent.  The 
corn-rent  has  made  the  old  rent  approach  in  some  degree 
nearer  to  its  present  value ;  otherwise  it  would  seem  that 
the  principal  advantage  of  a  corn-rent  is  to  secure  the  lessor 
from  the  effect  of  a  sudden  scarcity  of  corn  (b').  If  the  res- 
ervation be  of  corn  —  as  in  the  case  of  a  hospital  renewed 
lease,  where  the  reddendum  was  "so  many  quarters  of 
corn "'  —  it  will  be  understood  to  mean  legal  quarters,  reck- 
oning the  bushel  at  eight  gallons  (c).  A  reservation  of  eight 
bushels  of  grain  in  lieu  of  one  quarter  is  good,  because  it  is 
all  one  in  quality,  value  and  nature  ((?). 

Computation  of  rent  by  average  price  of  corn.  —  In  a  lease 
of  land  for  twenty-one  years  from  the  25th  of  JNIarch,  1848, 
it  was  covenanted  that  the  lessee  should  pay  a  stipulated 
sum  for  the  first  year,  with  a  proviso  that  the  rent  for  each 
subsequent  year  of  the  term  should  be  reduced  or  increased 
according  to  the  "  average  price  of  wheat  in  any  one  year  of 
the  said  term,"  such  average  "  to  be  taken  and  ascertained 
from  the  then  current  year's  averages,  which  were  taken  in 
the  month  of  January  in  every  year  under  and  by  virtue  of 
the  Titlie  Commutation  Act  (6  &  7  Will.  4,  c.  71),  s.  56," 
which  is  the  result  of  the  sales  "  during  seven  years  ending 
on  the  Thursday  next  before  Christmas-day  then  next  pre- 
ceding." It  was  held,  that  the  rent  might  be  computed 
according  to  such  septennial  average  so  published  in  each 
year  (e). 

[*382]  *  (b)  Construction  of  Reservations. 

Generally.  —  Wluire  there  are  special  days  of  payment  men- 
tioned  in   the   reddendum,  the  rent  ought  to  be   computed 

(b)  2  Blac.  Com.  .322.  (<l)  Mounfjoy's  caso,  5  Co.  R.  3  b ; 

(c)  MnstiT,  &c.  of  St.  Cross  J.  Ld.       Suf,'.  Pow.  7!)7. 

Howard  v.  Waldon,  G  T.  Tl.  338.  (r)  Kendall  v.  Baker,  11  C.  B.  842. 

602 


Ch.  X.  S.  2.]  UESEr.VATIONS   OF   RENT.  *382 

according  to  the  reddendum  and  not  according  to  the  haben- 
dum (/)  ;  but  where  the  reservation  is  general,  as  half- 
yearly  or  quarterly,  and  no  special  days  are  mentioned, 
there  the  half-year  or  quarter  must  be  computed  according 
to  the  habendum  (,</).  If  a  man  make  a  lease  the  first  day 
of  May,  reserving  rent  payable  quarterly,  this  means  quar- 
terly from  the  making  of  the  lease :  for  if  the  beginning 
of  the  quarter  should  be  construed  to  be  any  other  day 
than  the  date  of  the  lease,  the  lessor  would  lose  the  profits 
of  his  land  for  some  time,  and  consequently  not  have  quar- 
terly payment  made  during  the  continuance  of  the  lease  (A). 
Where  rent  was  to  be  payable  by  a  parol  demise  from  the 
Lady-day  following,  evidence  of  the  custom  of  the  country 
was  admitted  to  show  that  by  "  Lady-day,"  "  Old  Lady-day  " 
was  intended  (i). 

A  net  rent  is  a  sum  to  be  paid  to  the  landlord  clear  of  all 
deductions,  so  as  to  include,  for  instance,  land  tax  and 
sewers  rate  (Jc). 

Mining  leases.  —  Where  a  lessee  of  a  colliery  covenanted 
to  pay  as  rent  "•  one-third  part  of  the  money  that  should 
arise,  be  made,  received  or  produced  from  the  sale  of  the 
coals ; "  and  also  covenanted  to  keep  "  true  accounts  of  all 
coal  daily  raised,  and  to  make  and  deliver  true  copies  there- 
of ; "  it  was  held,  that  the  rent  was  to  be  calculated  on  the 
amount  of  coals  sold,  not  on  the  amount  of  money  actually 
received  for  them  (/). 

Dead  rent.  —  Mining  leases  frequently  stipulate  for  two 
rents  ;  first,  a  dead  rent,  i.  e.  a  rent  payable  whether  the 
mines  be  worked  or  not ;  and  secondly,  a  royalty  upon  the 
minerals  raised.  In  one  case  the  demise  was  of  all  right 
and  interest  in  coals  and  other  minerals  in  a  certain  estate, 


(/)  As  to  discrepancy  between  the  (/)  Doe  d.  Hall  v.  Benson,  4  B.  & 

habendum    and   reddendum  with  re-  A.  588;    Denn   v.    Hopkinson,    3    1). 

spect  to  the  length  of  the  term,  see  &  R.  507 ;  Smith  v.  Walton,  8  Bing. 

BurchelU.Clark,46L.  J.  115  (C.A.),  235;  but  see  Hogg  y.  Norris,  2  F.  & 

and  145,  ante.  F.  24G. 

{g)  Tomkinsy.  Pinsent,2Ld.  Raym.  (h)  Bennett  v.  Womack,  7  B.  &  C. 

819;  1  Salk.  141  ;  7  Mod.  90.  627  ;  3  C.  &  P.  96. 

(A)  Gilb.  Rents,  50 ;  2  Roll.  Abr.  (/)  Edwards  v.  Rees,  7  C.  &  P.  340. 
449,  450. 

603 


*384  RENT.  [Ch.  X.  S.  2. 

Michaelmas  following,  before  which  time  the  lease  would  have 
expired  (ii).  By  indenture  dated  21st  March,  a  messuage 
w^as  demised  from  25th  March  then  instant,  for  seven  years 
wanting  seven  days,  paying  therefor  yearly  and  every  year 
during  the  term  the  yearly  rent  of  2S51.  by  four  equal  quar- 
terly payments  on  the  25th  of  March,  24th  June,  29th  Sep- 
tember, and  25th  December,  in  every  year  commencing  from 
the  said  25th  March  then  instant ;  it  w-as  held,  that  this  was 
either  a  covenant  to  pay  a  before -hand  rent,  whereby  all  the 
payments  would  become  due  within  the  term,  or  else  that,  by 
virtue  of  the  words  yearly  and  every  year,  the  lessee  would 
be  liable  for  the  last  quarter's  rent  on  a  day  after  the  expira- 
tion of  the  term  (.r).  Where,  b}^  agreement,  dated  8th  Sep- 
tember, a  house  Avas  let  for  seven  years  at  an  annual  rent 
payable  quarterl}'^,  the  Jirst  payment  to  be  made  on  the  25th 
March  following,  it  was  held  that  only  a  quarter's  rent  be- 
came due  on  the  25th  March,  and  that  in  effect  the  payment 
for  the  first  quarter  was  postponed  until  after  the  end  of  the 
term  (;y). 

"  Gale."  —  Each  periodical  payment  of  rent  is  termed  a 
"  gale,"  from  "  gaveW  a  rent  or  duty,  and  each  "  gale  "  is  a 
distinct  debt  (2). 

"  Team  work."  —  In  a  lease  of  a  farm,  the  clause  "  the 
tenant  to  perform  each  year  for  the  landlord  at  the  rate  of 
one  day's  team  work  witli  two  horses  and  one  proper  i)erson 
for  every  50Z.  of  rent  when  required  (except  at  hay  and  corn 
harvest),  without  being  paid  for  the  same,"  extends  to  other 
than  agricultural  work,  such  as  hauling  coals;  but  it  does 
not  oblige  the  tenant  to  find  a  cart,  plough  or  other  vehicle 
or  machine  necessary  for  the  performance  of  the  work  (a). 

(c)  To  whom  Rent  reserved. 

Must  be  to  lessor  himself.  —  Rent  must  be  reserved  to  the 
lessor    himself,    and    not  to  a  stranger,  for    it  is   something 

(u)  Gill).    Rents,   49,    51  ;    Hill    r.  (//)  Ilutchins  r.  Scott,  2  I\r.  &  W. 

Grange,  Plow.  171.  800. 

(x)  Hopkins  V.  Helmore,  8  A.  &  E.  {z)  Welby  v.  I'liillips,  2  Vern.  120. 

463.  (a)  Duke   of    MariborouKh    v.   Os- 

l.orn,  5  B.  &  S.  07  ;  33  L.  J.,  Q.  B.  148. 

COG 


Cn.  X.  R.  2"!  RESERVATIONS   OF    RENT.  *385 

paid  by  way  of  retribution  or  compensation  for 
*  the  land,  and  ought  to  he  made  to  him  from  whom  [*385] 
the  hind  passes :  only  the  crown  can  make  a  reserva- 
tion of  rent  to  a  stranger  (A).  If  A.,  and  B.,  his  son,  by 
lease  reciting  that  B.  is  the  heir  apparent  of  A.,  let  for  years 
to  commence  after  the  death  of  A.,  rendering  rent  to  B.,  it 
will  be  void  ;  for  a  reservation  to  him  by  his  proper  name,  and 
not  to  him  as  heir,  is  the  same  as  if  it  were  to  a  stranger  (c). 
Where  by  a  lease  rent  was  reserved  to  a  person  7iot  a  party 
to  the  lease,  and  the  lessees  covenanted  with  him  and  the 
lessors  to  pay  rent,  &c.,  it  was  held,  that  he  could  not  join 
with  the  lessors  in  an  action  of  covenant  for  non-payment 
of  the  rent  (c?).  Where  there  is  any  doubt  as  to  the  person 
to  whom  the  reservation  should  be  made,  the  clearest  and 
safest  way  is  to  reserve  the  rent  generally^  during  the  term 
(tvithout  saying  to  wJiom'),  and  leave  it  to  be  distributed  by 
the  law  in  the  mode  pointed  out  in  Whitlock's  case  (^)  : 
for  if  the  reservation  of  rent  be  general,  the  law  directs  it  to 
be  paid  according  to  the  intent  and  the  nature  of  the  thing 
demised.  In  such  case  the  rent  goes  to  the  person  who 
Avould  have  succeeded  in  the  estate  if  the  lease  had  not  been 
made  (/). 

Effect  of  inaccuracies  as  to  parties.  —  As  rent  is  intended  by 
law  to  follow  the  reversion,  inaccuracies  of  expression,  by 
which  the  reservation  is  made  to  other  persons  than  the  re- 
versioner, have  not  the  effect  of  severing  it  from  the  rever- 
sion :  thus,  if  the  reservation  be  made  to  the  owner  in  fee, 
"  his  heirs,  executors  or  assigns,"  the  word  "  executors  "  will 
be  rejected,  and  the  rent  will  go  with  the  reversion  and  be- 
long to  the  heirs  (^).  In  any  case  (except  under  a  power) 
it  is  safe  to  make  the  reservation  to  the  lessor,  "  his  heirs, 
executors,  administrators  and  assigns  "  (A).     If  a  lessee  for  a 

(/;)  Lit.  s.  346;  Co.  Lit.  47  b;  Id.  (e)  8  Co.  R.  70,  141. 

14:3  b;  Gilb.  Rents,  54.  (/)  Gilb.  Rents,  G4,  71. 

(c)  Com.    Dig.    tit.    Rent    (B.    5)  ;  (</)  I<1.  61  ;  Cro.  Car.  207 ;  Co.  Lit. 
Oates  ('.  Frith,  Hob.  130;  Co.  Lit.  47,  47  a ;  1  Wms.  Exors.  768  (6th  ed.). 
143    b;    Sacheverell    v.    Froj,rgat,    1  (h)  Dollcn  v.  Batt,  4  C  B.,  N.  S. 
Ventr.    161;    2    Saund.   370;    Gilb.  768;  Whittome  v.  Lamb,  12  M.  &  W. 
Rents,  59.  813. 

(d)  Ld.  Southampton  v.  Brown,  6 
B.  &  C.  718. 

607 


*386  RENT.  [Ch.  X.  S.  2. 

term  of  years  makes  a  lease  for  a  less  term  of  years,  render- 
ing rent  to  him  "  and  his  heirs  during  the  term,"  it  will  go 
to  his  executors  (?')  ;  but  it  seems  to  be  otherwise  when  the 
words  "  during  the  term"  are  omitted  (^).  If  a  tenant  in 
tail  demise  for  years,  rendering  rent  to  himself  and  his  heirs, 
this  goes  to  the  heir  in  tail  (?),  and  not  to  the  general  heir. 
So  if  a  tenant  in  tail  to  him  and  the  heirs  male  of  the  body 
of  his  father,  lets  the  land,  rendering  rent  to  him,  "  his  heirs 
and  assigns,"  the  rent  will  go  to  the  heir  male  of  the  body  of 

his  father,  though  he  be  not  heir  to  the  lessor  (w). 
[*386]         *  Reservation  by  tenant  for  life.  —  If  a  tenant  for 

life,  having  a  power,  demise,  rendering  rent  to  him- 
self, his  heirs  and  assigns,  "  it  shall  be  adjudged  to  him  in 
remainder"  (w). 

Reservation  by  tenant  in  fee  to  himself  simpliciter.  —  It  ap- 
pears that  a  simple  reservation  of  rent  to  the  lessor  only,  not 
mentioning  his  heirs,  is  good  for  the  life  of  the  lessor 
only  (o)  ;  but  that  a  reservation  to  the  lessor  or  his  heirs 
during  the  term  is  good  for  the  whole  of  the  term  ( jt>). 
Where  the  words  "  during  the  term "  are  omitted,  and  the 
reservation  be  either  to  the  lessor  or  his  executors  or  as- 
signs (9-),  or  to  the  lessor  or  his  assigns  (r),  the  reservation 
is  good  for  the  life  of  the  lessor  only. 

(d)  Sums  in  Cri'oss,  quasi  Rent. 

Where  sum  reserved  not  rent.  —  A  reservation  of  an  annual 
sum  of  money  to  a  third  person  in  consideration  of  a  demise, 
may  be  good  by  way  of  contract,  thougli  it  is  not  a  sufficient 
reservation  of  rent,  l)ut  the  grantee  cannot  distrain  for  it, 
because  he  has  not  the  reversion  (s).    If  a  lessee  simply  cov- 

(0  Gilb.  Rents,  66;  1  Vcntr.  162;  Gilb.  Rents,  70;  2  Wms.  Sa\ind.  371, 

2  Wms.  Saunrl.  371,  n.  (7).  n.  (7)  ;  Greenaway  v.  Hart,  14  C.  B. 

(it)  Gill).  Rents,  06  ;  1  Vcntr.  161.  340. 

(/)  Com.   Di};.   tit.    Kent    (B.   5)  ;  (o)  Co.  Lit.  47  a. 

Sachfverell  v.  Fropgat,  1  Vcntr.  161  ;  (/<)  Sachevcrell      v.     Froggat,     1 

2  Wms.  Saund.  371,  n.   (7);    Sir  T.  Vcntr.  161. 

Raym.  213.  (7)  Gilb.  Rents,  62. 

(m)  Cothcr  v.  Merrick,  Ilardr.  01,  (r)  Id.  6.'3. 

96;  Gilb.  Rents,  70.  (s)  Gates  r.  Frith,  Hob.  130. 

(;i)  Whitlock's  case,  8  Co.  R.  70  b; 

608 


Cn.  X.  S.  2.]  RESERVATIONS   OE   RENT.  *387 

enant  to  pay  such  a  sum  j^early,  without  mentioning  it  as  a 
consideration  of  the  demise  of  the  premises,  it  is  not  a  rent, 
properly  so  called,  but  a  sum  in  gross  (^).  So  under  a  con- 
tract for  a  building  lease,  where  sums  in  the  nature  of  rent 
are  from  time  to  time  to  be  paid  before  the  lease  is  granted, 
such  payments  are  sums  in  gross,  and  not  rent(?t).  Where 
a  landlord  who  had  demised  premises  for  a  term  of  years  at 
a  certain  rent,  afterwards  agreed  to  enlarge  the  buildings,  the 
lessees  agreeing  to  pay  10?.  per  cent,  additional  on  the  outlay  ; 
it  was  held,  that  this  was  a  collateral  agreement,  and  not  a  con- 
tract running  with  the  land  (a;).  So  where  a  sum  of  money 
is  made  payable  for  goodwill,  over  and  above  the  rent,  this 
additional' sum,  though  payable  annually,  is  not  to  be  consid- 
ered as  rent,  but  only  as  a  sum  in  gross  (f).  Where  a  lease 
reserved  a  rent  of  40/.  per  annum,  and  at  the  end  of  it,  the 
words  "  the  allowance  of  the  road  to  the  Six  Bells'  Yard  to 
be  made  as  usual "  were  added,  and  it  appeared  that  it  had 
been  usual  for  the  landlord  to  allow  a  payment  of  5/.  an- 
nually, which  the  lessee  paid  to  a  third  person  for  the  use  of 
a  road,  it  was  held,  that  the  clause  in  question  was  a  mere 
covenant,  and  not  an  alteration  of  the  rent,  so  as  to  support 
a  plea  of  non  tenuit  in  replevin  (?/). 

*  (e)    In  Lease  of  Settled  Land.  [*387] 

General  restrictions  in  powers.  —  The  power  of  leasing 
commonly  introduced  into  settlements  of  estates  in  Eng- 
land requires  the  best  rent  to  be  reserved,  and  expressly 
prohibits  the  taking  of  a  fine  (2).  Formerly  these  powers 
required  the  ancient  or  usual  rent  (a)  to  be  reserved,  but  at 
the  present  day  this  practice  is  very  properly  exploded  (^), 
and  the  Settled  Land  Act,  to  which  reference  at  length  has 


(0  Smithi'.  Mapleback,  IT.  R.441.  (y)  Davies  v.  Staccy,  12  A.  &   E. 

(«)  Hewlett  V.  Tarte,  10  C.  B.,  N.  606'. 
S.  813;  31  L.  J.,  C.  P.  146;  Marquis  (c)  Sug.  Pow.  779  (8th  ed.). 

Camden  v.  Batterbury,  7  C.  B.,  N.  S.  (a)  For  construction  of  these  terms 

864.  see   Sug.   Pow.   790,  citing    Right  i-. 

(x)  Lambert  v.  Norris,  2  M.  &  W.  Thomas,  1    W.  Blac.  44G,  and  other 

333;  Hoby  v.  Roebuck,  7  Taunt.  157;  cases. 
Donellan  v.  Read,  3  B.  &  Ad.  899.  (b)  Id.  790. 

609 


*387  BENT.  [Ch.  X.  S.  2. 

already  been  made  (e),  expressly  requires  the  best  rent  to  be 
reserved  that  can  reasonably  be  obtained. 

Power  to  allow  for  improvements.  —  In  two  cases,  however, 
the  best  rent  need  not  of  necessity  be  reserved.  Where  the 
holding  is  agricultural,  and  the  tenant  has  made  or  paid  for 
improvements  thereon,  the  43rd  section  of  the  Agricultural 
Holdings  Act,  1883,  jn-ovides  that  it  shall  not  be  necessar}', 
in  estimating  the  rent,  to  take  into  account  against  the  ten- 
ant the  increase  in  value  arising  from  the  improvements ; 
and  where  a  lease  is  made  of  land  for  the  purpose  of  erecting 
thereon  dwellings  for  the  working  classes,  the  11th  section  of 
the  Housing  of  the  Working  Classes  Act,  1885,  provides  that 
the  lease  may  be  "  for  such  rent  as  having  regard  to  the  said 
purpose,  and  to  all  the  circumstances  of  the  case,  is  the  best 
that  can  be  reasonably  obtained,  notwithstanding  that  a 
higher  rent  might  have  been  obtained  if  the  land  were 
leased  for  another  purpose." 

What  a  sufficient  execution  of  a  power.  —  Where  a  lease  is 
made  under  a  leasing  poAver,  it  must  clearly  appear  by  the 
instrument  that  the  proper  rent  has  been  reserved  (t?)  ;  and 
although  generally  the  lease  must  specify  the  rent  reserved, 
yet  in  some  cases  the  reservation  may  be  made  in  the  terms 
of  the  power  generally  (e),  for.  Id  certum  est  quod  cerium 
reddi  jyotesf. 

To  whom  reservation  made.  —  Altliough  at  common  law 
rent  can  be  reserved  only  to  the  lessor  and  his  heirs  who  are 
privies  in  blood,  and  not  to  any  who  is  pi'ivy  in  estate — as 
to  him  in  reversion,  remainder,  &c.  (./") — 3'et  in  the  case  of 
powers  the  reservation  to  a  tenant  for  life  and  his  heirs  is 
good,  and  enures  as  rent  to  the  remainderman,  who  may 
distrain  for  it  (<7).  But  where  the  lease  did  not  recite  the 
power,  and  was  made  by  a  tenant  for  life  in  remainder  after 
a  term  of  500  years,  and  reserved  the  rent  to  him,  his  heirs 


(c)  Antr,  C!i.  I.,  Sect.  4.  Pifxot,  ritod  o  Cli.  Rep.  Gl ;  Sug.  Tow. 

(tl)  Kcr  V.   Duke  of   IloxburRh,  2  KOI. 
Dow,  140;  Sug.  I'ow.  702,  pi.  .'].') ;  Id.  (./)  Anir,  .384. 

802.  (y)  Anon.,   Anderson,  278;  rowell 

(e)  I'owc'll  on  Powers, ,').").'') ;  r)rliy  r.  on  Powers,  572-674. 
Moliun,   .'j    ('li.    liep.    )">(;;     I.cwson    v. 

CIO 


Cn.  X.  S.  2.]  RESEIIVATIONS    OF    IlENT.  *388 

and  assigns,  it  was  decided  to  be  void,  the  rent  not  being 
made  incident  to  the  immediate  reversion  (/<). 

The  whole  rent  must  be  payable  annually  during  the  whole 
term,  for  the  design  of  the  donor  is  not  answered 
unless  a  continual  revenue  *  be  yearly  payable  by  com-  [*388] 
pulsion  of  law,  and  not  in  expectancy  or  in  futuro  (*z)  ; 
but  under  a  power  to  make  leases  reserving  the  ancient  yearly 
rent  annually,  if  it  were  reserved  upon  a  day  before  the  year 
was  up  —  as  if  the  year  ended  at  Christmas,  and  it  was  re- 
served at  Michaelmas,  it  would  be  sufficiently  in  pursuance 
of  the  power  (/c). 

Construction  of  "  best  rent."  —  Whether  the  "  best  rent "  is 
reserved  is  a  question  of  fact  to  be  decided  by  a  jury  (Z). 
Improvements  by  the  tenant,  however  valuable,  will  not 
authorize  a  lease  at  an  undervalue  Qm'),  unless  the  holding  be 
agricultural  (w).  Where  a  testator  gave  lands  to  trustees 
upon  certain  trusts,  with  a  power  to  lease  for  the  best  yearly 
rent  without  fine  or  foregift ;  it  was  held  that  a  lease  for  a 
fixed  rent,  with  a  proviso  that  the  first  five  years'  rent  shouhl 
be  paid  in  advance,  was  not  warranted  by  the  power  (o).  A 
lease  from  11th  of  October,  making  the  rent  payable  by 
half-yearly  payments  on  the  6th  of  April  and  the  11th  of 
October,  except  the  last  half-year's  rent,  which  Avas  made 
payable  on  the  1st  of  August  l)efore  the  end  of  the  term, 
was  held  good,  as  being  more  likely  to  benefit  than  to  preju- 
dice the  remainderman  (jt?).  Under  a  power  to  grant  leases 
for  twenty-one  years,  "•  so  as  upon  every  such  lease  there 
shall  be  reserved  the  best  improved  rent  that  can  reasonably 
be  had  for  the  same,"  a  lease  by  a  tenant  for  life,  reserving 
a  larger  rent  than  had  been  paid  to  the  devisor,  but  not  the 
best  rent  which  could  have  been  fairly  obtained,  though  there 

(A)  Yellowly    v.    Gowcr,   11    Exch.  Esp.  78;  Doe  d.  Sutton  v.  Harvey,  1 

274,  291 ;  Bailey  c.  Tennant,  11  Exch.  B.  &  C.  426. 

776.  (m)  Roe    v.    Archbp.    of    York,   6 

(0  Taylor  d.  Atkyns    v.  Horde,  1  East,  86. 

Burr.  121;  2  Smith   L.  C.   405  (6th  («)  Ante,  587. 

ed.).  (o)  Booth  v.  A'Beokett,  1  Moo.  V. 

(k)  Reg.  V.  Weston,  2  Ld.  Raym.  C.  C.  (N.  S.)  201 ;  9  L.  T.,  N.  S.  68. 

1198.  (/))  Rutland   d.  Doe   r.  Wythe,  2 

(0  Wright   V.  Smith,  5   Esp.  208;  M.  &  W.  661  ;  12  Id.  355;  10  CI.  &  F. 

see  also  Doe  d.  Griffith  v.  Lloyd,  3  419. 

611 


*389  RENT.  [Ch.  X.  S.  2. 

was  no  fraud  or  collusion,  was  determined  to  be  void  (?•).  It 
Avould  seem  that  the  best  rent  means  the  best  rack-rent  that 
can  reasonably  be  required  by  the  landlord,  taking  all  the 
requisites  of  a  good  tenant  for  the  permanent  benefit  of  the 
estate  into  the  account  (s).  A  lease  at  43^.  a  year,  granted 
under  a  po^er  directing  the  best  rent  to  be  reserved,  cannot 
be  impeached  merely  by  showing  that  the  lessor  rejected  at 
the  time  two  specific  offers,  one  at  501.  and  another  of  from 
50?.  to  QOl.  from  other  tenants,  though  the  responsibility  of 
such  other  tenants  could  not  be  disproved ;  for  in  the  exer- 
cise of  such  a  power,  where  fairly  intended,  and  no  fine  or 
other  collateral  consideration  is  received,  or  injurious  par- 
tiality plainly  manifested  by  the  lessor,  all  other  requisites  of 
a  good  tenant  are  to  be  regarded  as  well  as  the  mere  amount 
of  the  rent  offered,  unless  something  extravagantly  wrong  in 
the  bargain  for  rent  be  shown  (s).  In  Doe  v.  Harvey  a 
power  was  reserved  to  grant  leases  for  a  term  not  exceeding 
seven  years,  "so  as  there  was  reserved  in  such  leases  the 

best  rent  that  could  be  gotten  for  the  same,  without 
[*389]  *  taking  any  premium  for  the  making  thereof."    The 

donee  of  the  power  granted  a  lease  for  seven  years  at 
a  specified  rent,  which  lease  contained  a  covenant  by  the 
lessee  to  find  board,  lodging  and  wearing  a|)parel,  during  the 
term,  for  three  children  of  the  donee  (if  they  wished  it),  at 
11.  a  year  each,  and  for  the  donee's  son  gratis.  It  was  held 
by  Parke  and  Patteson,  JJ.,  that  (assuming  the  power  to 
require  two  conditions,  first,  that  the  rent  reserved  should  be 
the  best  rent,  and  secondly,  that  there  should  be  no  fine  or 
premium)  it  did  not  clearly  appear  on  the  face  of  the  lease 
that  either  of  those  conditions  had  been  broken,  because  the 
covenant  to  maintain  the  children  was  not  necessarily  bene- 
ficial to  the  lessor,  and,  therefore,  parol  evidence  was  admis- 
sible to  show  that  the  rent  reserved  was  the  best  that  could 
be  obtained  (^).  The  best  rent  must  be  reserved  during  the 
whole    teini,  so  as  not  to  prejudice   any   remainderman   or 

(r)  Wright  r.  Smilli,  '.  Ksp.  200;  5       East,  278;  Dyas  v.  Cruise,  2  Jon.  & 
Dow,  814;  Siif,'.  Tow.  780  (8tli  cd.)-  I-»f-  •!'''>• 

(s)  Doe  d.  Luwton  v.  llailcliffe,  10  (/)  Doe  (/.  Rogers  r.  lioKer8, 5  B.  & 

Ad.  70-!)  (dUs.  'I'auiiton,  J.). 

C12 


Cii.  X.  S.  2.]  RESEKVATIONS    OF   RENT.  *390 

reversioner  (w) ;    nor    even    the    tenant   for    life    who    de- 
mises (.c). 

As  to  fines  or  premiums.  —  A  tenant  for  life  under  a  settle- 
ment with  power  to  lease  at  the  "  usual  rent,"  may  demise 
upon  reserving  the  usual  lines  and  rent,  where  the  usual 
profit  had  previously  been  made  by  fines  (?/).  Where  there 
was  a  devise  to  the  use  of  H.  I.  for  life  Avitliout  impeachment 
of  waste,  &c.,  remainder  to  the  use  of  plaintili"  for  life,  with 
power  to  make  leases  for  two  or  three  lives,  &c.,  or  for  the 
term  of  twenty-one  years,  so  as  there  be  reserved  the  best 
rent,  without  taking  any  sum  or  sums  of  money  or  other 
thing,  for  or  in  lieu  of  a  fine  ;  and  H.  I.,  by  indenture  of  loth 
October,  leased  for  fourteen  years,  to  be  computed  as  to  the 
meadow  land  from  13th  February,  the  pasture  from  25th 
March,  and  the  messuage  from  12th  May  previously,  under  a 
yearly  rent,  payable  to  the  lessor  and  such  other  person  as 
should  be  entitled  to  the  freehold  and  inheritance,  half- 
yearly,  on  the  11th  November,  and  25th  March,  the  first  pay- 
ment to  be  made  on  11th  November  next  ensuing ;  and  the 
lessee  covenanted  with  the  lessor,  his  heirs  and  assigns,  for 
payment  to  the  lessor  and  such  other  person,  &c.,  of  the  rent 
at  the  days  and  times,  &c. :  it  was  held,  that  the  reservation 
of  the  first  half-year's  rent,  payable  at  the  end  of  twenty- 
seven  days,  was  not  taking  a  sum  of  money  for  a  fine,  being 
in  consideration  of  a  preceding  occupation  (z).  Where  a 
power  was  given  to  a  tenant  for  life  to  make  leases,  with  or 
without  a  fine,  at  such  rent  as  he  thought  proper ;  it  was 
held,  that  a  lease,  without  any  reservation  of  rent  whatever, 
was  good  (a). 

*  Effect  of  improvement.  —  Where  a  tenant  for  life   [*390] 
entered  and  built  a  new  house  upon  the  land,  and 
then  made  a  lease  for  twenty-one  years,  reserving  only  the 

(xi)  Doe  d.  Sutton  v.  Harvey,  1  B.  Burr.    1446  ;    Doe    d.   Newnham    v. 

&  C.  426.                                        "  Creed,  4  M.  &  S.  371. 

{x)  Moiintjoy's  case,  5  Co.  R.  6  a,  (s)  Islierwood  v.  Oldknow,  3  M.  & 

b;  Sug.  Pow.  792.      Where  the  rent  S.  382;  Sug.  Pow.  7!)2  (8th  ed.). 

is  reserved  at  a  future  day  by  mis-  («)  Talbot    ?-.    Tipper,    Skin.   427  ; 

take,  see  Marquis  of  Donegal  r.  Grey,  Sug.  Pow.  433;  In   re  Molton,  2   Ir. 

13  Ir.  Eq.  R.  12,  52,  53.  Com.  L.  R.  64  ;  Clarke  v.  Smith,  9  CI. 

{y)  Right  d.  Bassett  v.  Thomas,  3  &  F.  126. 

613 


*390  RENT.  [Ch.  X.  S.  3. 

ancient  rent,  &c.,  tlie  court  would  not  suffer  an  objection  to 
it  to  be  argued  (6). 

Sect.  3.  —  Penalty  or  Liquidated  Damages. 

Penalty  in  leases,  &c.  —  Sometimes  the  payment  of  rent 
and  performance  of  covenants  in  a  lease  or  agreement  for  a 
lease  are  secured  by  a  bond  or  penalt}-,  with  or  without 
sureties  (c).  The  right  to  such  penalty  will  pass  with  the 
reversion  as  an  incident  thereto,  and  may  be  enforced  against 
an  assignee  of  the  term  (t?).  If  there  be  a  penalty  to  secure 
the  payment  of  rent,  the  lessor  must  demand  the  rent  at  the 
day  fixed  for  the  payment  of  it  (c).  It  seems  that  such 
penalty,  like  any  other  forfeiture,  may  be  waived  by  accept- 
ance of  the  rent  (/). 

Action  for  the  penalty.  —  Whenever  a  breach  first  occurs, 
for  which  an  action  is  necessary,  the  lessor  may  sue  either 
for  the  penalty  or  for  general  damages  (^).  Where  he  elects 
to  sue  for  the  penalty  he  must  allege  (inter  alia)  that  the 
penalty  has  not  been  paid :  otherwise  there  Avill  be  no  suffi- 
cient breach,  and  only  general  damages  can  be  recovered  (/<). 
The  judgment  will  be  for  the  penalty  with  costs :  but  execu- 
tion may  issue  only  for  the  damages  as  assessed  by  the  jury 
and  all  costs  (z).  Such  judgment  will  afterwards  stand  as 
a  security  for  further  breaches,  which  may  be  suggested 
from  time  to  time  when  necessary  (Jc). 

Action  for  damages.  —  After  obtaining  judgment  for  the 
penalty  the  plaintiff  cannot  bring  a  fresh  action  for  damages 

(,'j)  ■Read  and  Nash's  case,  1  Leon.  74,  111  ;  hut  see  Thynn  v.  Cliohnley, 

147 ;  Sug.  Pow.  790.  Cro.  Eliz.  ."So. 

(c)  Andrews    v.    Wood,  Cro.    Eliz.  (/)  Doe     d.     Cliecny    v.    Batten, 

."32;  riiapnian  v.  Chapman,  Cro.  Car.  Cowp.  247. 

7f5;  StanclitTe,  app.,  Chirke,  rosp.,  7  (.7)  leek^  v.  Grew,  G  N.  &  M.  4(57. 

Exch.  4.39;  21  L.  .!.,  E.x.  120.  (//)  Hurst  r.  Hurst,  4  E.xeli.  571;  6 

(</)  Co.  Lit.  Gl  b,  12G;  Rudloss  v.  Excli.  203;   lU'indell  v.  Sehell,  4    C. 

Phillips,    Cro.    Eliz.   805;    Thynn    v.  B.,  N.  S.  07. 

Cholmley,    Cro.    EUz.   .383;    Etrcrton  (/)  1  Cliit.  Arch.  G02  (lltli  ed.)  ;  2 

V.  Siieafe,   Lutw.    1151;    (iill).    Rents,  Id.  1002;  Chit.  Forms,  25(i,  702  (0th 

14.3.  cd.). 

(e)  Hac.  Ahr.  tit.  Condition  (O.  2);  (/>)  Astley  v.  Wehhm,  2  Bos.  &  P. 

Id.  tit.  Rent  (I.)  ;  Grantham  v.  Thorn-  353  ;  Lowe  v.  Peers,  4  Burr.  2228. 
borougli.  Hob.  82,  133;  (Jilh.  Rents, 

G14 


Ch.  X.  S.  3.]  PENALTY   OR    LIQUIDATED   DAMAGES.  *391 

in  respect  of  siibsecpieut  breaches,  but  must  suggest  them  as 
above  mentioned.  On  the  other  hand,  if  the  lessor  (or  his 
assigns)  elect  to  sue  for  damages  for  any  breach,  he  cannot 
afterwards  maintain  an  action  for  the  penalty,  but  he  may 
recover  damages  toties  qiioties  to  a  greater  amount  than  tlie 
penalty  (?).  Only  such  damages  as  the  jury  shall  find  that 
the  plaintiff  has  actually  sustained  by  the  alleged  breaches 
can  be  recovered  (m). 

*  Liquidated  damages.  —  "  Liquidated  damages  "  are  [*391] 
sums  agreed  to  be  paid,  and  intended  to  he  actually 
paid  (»),  for  the  breach  of  any  particular  covenant  or  stipu- 
lation. Thus,  where  a  tenant  covenants  or  agrees  not  to 
plough  up  any  of  the  ancient  meadow  or  pasture  ground, 
and  that  if  he  does  so,  he  will  pay  an  additional  yearly  rent 
of  6Z.  per  acre ;  or  that  he  will  pay  an  additional  specified 
rent  per  acre,  and  so  in  proportion,  for  every  acre  had  in 
tillage  beyond  a  certain  quantity  (o) ;  or  that  he  will  not 
sow  more  than  seventy  acres  with  clover  in  one  year,  or  if 
he  does  so,  will  pay  an  additional  rent  of  10/.  for  every  acre 
above  seventy  for  the  residue  of  the  term  (^)  ;  or  if  the 
lease  contain  a  stipulation  that  for  every  acre,  and  so  in  pro- 
portion for  a  less  quantity,  which  the  lessee  should  suffer  to 
be  occupied  by  any  other  person,  without  the  consent  of  the 
landlord,  an  additional  rent  shall  be  paid  (5-)  ;  in  these  and 
similar  cases  the  additional  sums  reserved  become  recover- 
able, when  once  the  particular  stipulation  is  broken,  for  the 
remainder  of  the  term.  Where  a  tenant  held  under  a  demise 
upon  the  terms  not  to  sell  any  hay  produced  on  the  demised 
premises,  off  the  said  premises,  "  under  the  penalty  of  2s.  Qd. 
for  each  yard  of  the  said  hay  so  sold  as  aforesaid,  to  be  re- 
covered by  distress  as  for  rent  in  arrear : "  it  was  held,  that 

(/)  Lowte   V.  Peers,  4   Burr.   2228;  430;  Bowers  v.  Nixon,  12  Q.  B.  546, 

Winter  v.  Trimmer,!  W.  Blac.  395;  558;    Denton  r.    Richmonil,  1  Cr.  & 

Harrison    v.    Wright,    13    East,   343;  M.  734;  Birch  r.  Stei)henson,  3  Taunt. 

Mercer  v.  Irving,  E.,  B.  &  E.  563;  6  4G9;  Howell  v.  Kichards,  11  East,  633  ; 

W.  R.  661.  Farrant  v.   Ohnius,  3  B.  &  A.   692. 

(m)  See  Kemble  v.  Farren,  6  Bing.  (p)  Jones  v.  Green,  3  Y.  &  J.  298. 

141.  (9)  Greenslade   v.   Tapscott,   1    C., 

(n)  Diniich  i'.  Corlett,  12  Moore,  P.  M.  &  II.  55  (user  of  small  portions 

C.  C.  199.  of  land  for  raising  potato  crop). 

(0)  Rolfe  V.  Peterson,  2  Bro.  P.  C 

615 


*392  RENT.  [Ch.  X.  S.  3. 

although  this  was  not  strictly  a  rent,  it  was  not  a  penalty, 
but  an  agreed  sum  recoverable  by  distress  as  for  rent  (r). 

Injunction.  —  Where  an  increased  rent  is  reserved  by  way 
of  liquidated  damages,  an  injunction  will  not  be  granted  to 
restrain  the  lessee  from  committing  the  breach  of  covenant 
in  respect  of  which  the  increased  rent  becomes  payable  (s), 
but  where  there  was  a  covenant  by  a  lessor  not  to  carry  on 
the  business  of  a  saddler  within  ten  miles  of  the  demised 
premises,  and  to  pay  100?.  by  wa}^  of  liquidated  damages  if 
he  did,  an  injunction  was  granted  (^). 

Difference  between  penalty  and  liquidated  damages.  —  The 
difference  between  a  penalty  and  liquidated  damages  is  very 
great.  Although  judgment  may  be  obtained,  execution  can- 
not issue  to  levy  the  amount  of  a  penalty,  but  only  the  dam- 
ages assessed  by  the  jury,  with  costs  ;  and  the  judgment  Avill 
stand  as  a  security  for  any  subsequent  breaches  (?<).  But 
liquidated  damages  constitute  a  debt  of  fixed  amount,  which 
may  be  recovered  upon  proof  of  the  contract  and  breach, 
without  au}^  evidence  as  to  the  amount  of  damages  actually 
sustained  (x).  In  such  case  the  jury  is  bound  to 
[*392]  give  their  *  verdict  for  the  Avhole  sum  stipulated  to 
be  paid  (however  disproportionably  large),  and  not 
for  what  they  find  to  be  the  actual  amount  of  damage  sus- 
tained :  otherwise  the  court  will  set  aside  the  verdict,  and 
grant  a  new  trial  (?/).  But  the  court  will  not  set  aside  the 
award  of  an  arbitrator  on  this  ground,  unless  the  mistake 
appear  on  the  face  of  his  award  (2).  Increased  rent,  being 
in  the  nature  of  liquidated  damages,  may  be  distrained 
for  Ca),  but  a  ])(;nalty  cannot. 

How  distinguished.  —  Notwithstanding  the  important  differ- 

(r)  Pollitt  ;■.  Forrest,  11  Q.  B.  949;  Excli.    059;    Atkyns    7-.    Kinnier,    4 

1  C.  &  K.  5(50.  Excli.  770;  Saiiiter  i;.  luTfjuson,  7  C. 

(s)  Woodward    v.    Giles,   2    Vern.  B.  710;  Reynolds  ;;.  Bridge,  G  E.  & 

119.  B.  528;  Mercer  v.  Irving,  E.,  B.  &  E. 

(0  Jones  1'.  Heavens,  L.  II.,  4  Ch.  503. 

I).  030;  25  W.  R.  355.  (//)  Farrant  v.  Olmius,  3  B.  &  A. 

(h)  Ante,  note  (7).  092  ;    Mercer  v.   Irving,  E.,  B.  &  E. 

(x)  A.stley  v.  Weidon,  2  Bos.  &  P.  503 ;  Fletolier  v.  Dyclie,  2  T.  R.  37. 

351  ;  Rolfe  v.  Peterson,  2  Bro.  P.  0.  (')  Fuller  v.  Fenwiek,  3  C.  B.  705. 

43(i ;  Green  v.  Price,  13  M.  &,  W.  095 ;  (,i)  Pollitt  v.  Forrest,  11  Q.  B.  449 ; 

10  Id.  340;    Galswortliy  v.   Strutt,   1  Bowers  i;.  Nixon,  12  Q.  B.  640,  558. 

GIG 


Cii.  X.  S.  3.]         PENALTY   OR   LIQUIDATED    DAMAGES.  *393 

ences  between  a  penalty  and  liquidated  damages,  it  is  some- 
times difficult  to  distinguish  tlieni :  the  numerous  cases  upon 
this  point  are  somewhat  conflicting.  If  expressly  called  a 
"penalty  "  in  the  contract,  that  is  not  conclusive  (/>)  ;  but  if 
pleaded  as  a  penalty,  that  is  conclusive  against  the  ])arty  so 
pleading  (c).  On  the  other  hand,  if  expressly  declared  in 
the  contract  to  be  "  liquidated  and  ascertained  damages,  and 
not  a  penalty  or  penal  sum  or  in  the  nature  thereof,"  it 
may  be  held  to  be  a  mere  penalty  (jT).  It  not  unfrequently 
happens  that  the  same  sum  is  called  both  a  penalty  and 
liquidated  damages  in  the  same  sentence ;  or  it  is  stated  to 
be  a  penalty  or  forfeiture  to  be  recovered  as  liquidated 
damages  (e).  There  is  no  magic  in  words.  A  penalty 
is  a  penalty,  although  called  liquidated  damages,  "  the 
mere  alteration  of  the  term  cannot  alter  the  natui-e  of  the 
thing  "(/).  The  courts  are  therefore  bound,  in  compliance 
with  the  established  rules  of  construction,  to  collect  the 
meaning  of  a  writing  and  the  real  intention  of  the  parties,  not 
from  any  single  word  or  particular  expression,  but  from  the 
whole  scope  and  tenor  of  the  instrument  (</).  If  it  contains 
various  stipulations  for  the  performance  or  observance  of 
several  things  of  more  or  less  importance  to  the  parties,  and 
the  breach  of  any  one  of  which  gives  rise  to  a  definite  amount 
of  damage,  and  one  large  sum  is  stated  at  the  end  to  be  j^f'iid 
upon  any  omission,  neglect  or  default,  such  sum  must  be 
considered  as  a  penalty  (Ji).  But  it  is  otherwise  where  the 
damage  sustained  is  of  an  unliquidated  nature,  and  not  of 
definite  amount:  in  such  cases  the  full  stipulated  sum 
(however  large  and  disproportionate)  *  may  gener-  [*393] 

{h)    Sainter  v.  Ferguson,  7   C.   B.  C.  390;  Legge  v.  Horlock,  12  Q.  B. 

710;     Hurst  V.  Hurst,  4  Exch.  571  ;  5  1015. 

Id.  203;  Legge  v.  Horloch,  12  Q.  B.  (/)  Davics  v    Pcnton,  G   B.   &  C. 

1015;  Crux  v.  Aldred,  14  W.  R.  656,  216;  Ketiil)le  i-.  Farreii,  6  Biiig.  141; 

C.  r.  Horner  v.  Flintoff,  9  M.  &  W.  678. 

(c)  Follitt  V.  Forrest,  11  Q.  B.  949,  {g)  Dimich  v.  Corlctt,  12  Moo.  P. 

966.  C.  C.  199. 

(rf)  Kcnible  v.  Farren,  6  Bing.  141.  {h)  Astley  v.  Weldon,  2  Bos.  &    P. 

(e)    Davies   v.   Penton,  6  B.  &  C.  346;  Kemble  p.  Farren,  6  Bing.  141; 

216;  Crisdee  y.  Bolton,3C.  &P.  240;  Boys  t-.  Ancell,   5  Bing.  X.   C.   390; 

8    Moo.   252  ;    Horner   v.    Graves,    7  Bacham  v.  Drake,  8  M.  &  W.  853. 
Bing.  735 ;  Boys  v.  Ancell,  5  Bing.  N. 

617 


*o93  KENT.  [Cn.  X.  S.  3. 

all}'  be  recovered  (Q.  The  law  on  the  question  of  penalty 
or  liquidated  damages  may  now  be  considered,  after  a 
great  number  of  decisions,  not,  perhaps,  all  of  them  strictly 
reconcilable  with  each  other,  to  be  at  length  satisfactorily 
settled :  and  the  hinge  on  which  the  decision  in  every  par- 
ticular case  turns  is  tJie  intention  of  tJie  parties^  to  be  collected 
from  the  language  they  have  used.  The  mere  use  of  the 
term  "  penalty,"  or  the  term  "  liquidated  damages,"  does  not 
determine  that  intention  ;  but,  like  any  other  question  of 
construction,  it  is  to  be  determined  by  the  nature  of  the  pro- 
visions and  the  language  of  the  whole  instrument.  One 
circumstance,  however,  is  of  great  importance  towards  ar- 
riving at  a  conclusion  ;  if  the  instrument  contains  many 
stipulations  of  varying  importance,  or  relating  to  objects  of 
small  value  calculable  in  moriey,  there  is  the  strongest  ground 
for  supposing  that  a  stipulation,  applying  generally  to  a 
breach  of  all  or  any  of  them,  was  intended  to  be  a  penalty, 
and  not  in  the  way  of  liquidated  damages  (Jc). 

Forfeiture  of  a  deposit.  — Where  a  deposit  is  made  to  secure 
the  due  performance  of  a  written  contract,  and  it  is  to  be 
forfeited  in  case  of  any  breach,  such  forfeiture  may  be 
enforced,  and  is  not  considered  as  a  penalty  (Z) ;  or,  instead 
thereof,  the  amount  of  damage  actually  sustained  may  be 
recovered  (m). 

Increased  rent  for  tillage.  —  Where  there  is  a  reservation  of 
bl.  per  aci'c  during  the  last  twenty  3'ears  of  a  term,  for  every 
acre  of  meadow  which  the  tenant  shall  plough,  or  convert 
into  tillage  during  the  said  last  twenty  years  of  the  term, 
and  so  after  that  rate  for  any  greater  or  less  quantity  than 
an  acre,  or  less  time  than  a  year,  it  is  considered  that  the 
rent  is  due  in  the  last  twenty  years,  if  the  land  is  then 
plonglied,  Avhether  it  was  first  ploughed  within  ths  last 
twenty  years,  or  before ;  and  the  rent  continues  payable 
during  the  twenty  years,  though  the  land  be  again  laid  down 
to  permanent  grass  (w).     Ilic  right  to  additional    rent    for 

(0  Anie,  392,  note  (//).  (m)  Icely  v.  Grew,  0  N.  &  M.  467. 

(Jc)  Ante,  392,  note  (;/).  (71)  Kirch  r.  Stcplu'nson,  3  Taunt. 

(/)  Ilniton  V.  Sparkt'9,  L.  R.,  3  C.  4(',<.) ;  IIowill  ?•.  Ritliards,  11  East, 
P.  IC)\;  37  L.  J.,  C.  1'.  81.  033;   liac.  Abr.  tit.  Rout  (F.). 

G18 


Ch.  X.  S.4.]  WHEN  KENT   IS   DUE.  *394 

over  tillage  is  not  waived  by  the  acceptance  of  the  reserved 
rent  with  a  knowledge  of  the  breach  (o). 

Increased  rent  in  publican's  lease  for  not  taking  lessor's  beer. 
—  The  provision  sonietinios  inserted  in  a  publiean's  lease, 
that  the  lessee  shall  take  all  his  beer  fi'oni  the  lessor,  or  else 
pay  an  advanced  rent,  has  been  much  censured  by  the  courts; 
and,  at  all  events,  such  a  covenant  is  subject  to  an  implied 
condition,  and  cannot  be  enforced  unless  the  lessee  be  sup- 
plied with  good  beer  (j9). 


*  Sect.  4.  —  When  Bent  is  due.  [*394] 

Rent  is  due  in  morning,  must  be  demanded  at  sunset,  is  in 
arrear  after  midnight.  —  The  rules  of  the  common  law  with 
respect  to  the  time  when  rent  is  due,  and  when  it  must  be 
demanded,  are  very  curious  and  precise.^  It  seems  that  rent 
is  due  in  the  morning  of  the  day  appointed  for  payment,  but 
it  is  not  in  arrear  until  after  midnight  (  q). 

Just  before  and  at  sunset  is  the  time  appointed  by  law 
to  make  a  proper  demand  of  it  (r),  to  take  advantage  of  a 
condition  of  re-entry  ;  ^  the  demand  should  be  made  such 
time  before  sunset  as  to  allow  sufficient  lig-ht  to  count  the 

(o)  Denton  v.   Richmond,   1   C.   &  (7)  Dibble  v.  Bowatcr,   2  E.   &  B. 

M.  734.  504;   Cutting  v.   Derby,   2    W.   Blac. 

(p)    Cooper   V.    Twibill,   3    Camp.  1077;  Leftley  r.  Mills^  4  T.  R.  473; 

286;  Holcombe  v.  Hewson,  2  Camp.  Bac.  Abr.  tit.  Rent  (H.). 

391;  Stancliffe,  app.,  Clarke,  resp.,  7  (r)  Duppa  r.  Mayo,  1  Saund.  287; 

Exch.  439;  21  L.  J.,  Ex.  129.  2  Salk.  578;  Cole  Ejec.  413. 

1  Rent :  •when  due.  —  In  lease  for  year  (in  absence  of  different  express 
or  implied  agreement),  it  is  payable  at  end  of  year.  Manough's  Appeal,  5  W. 
&  S.  (Pa.)  432.  In  lease  from  year  to  year,  it  is  payable  at  end  of  each  year, 
Duryee  i\  Turner,  20  Mo.  App.  34;  Ridgley  v.  Stilhvell,  27  Mo.  128,  134; 
likewise  in  lease  for  years,  Boyd  ;».  McCombs,  4  Pa.  St.  140. 

Rent  is  not  payable  (ordinarily)  until  use  and  occupation  has  been  enjoyed, 
Bordman  r.  Osborn,  23  Pick.  (Mass.)  295,299;  Wooil  ;•.  Partridge,  11  Mass. 
488,  and  the  entire  rent  period  has  expired,  English  v.  Key,  39  Ala.  113,  110, 
117. 

2  Johnston  v.  Hargrove,  81  Va.  118  ;  Connor  v.  Bradley,  1  How.  211,  217  ; 
Jackson  v.  Harrison,  17  Johns.  (N.  Y.)  00,  71  ;  Remsen  v.  Conklin,  18  Id.  447, 
450  {}ier  Spencer,  Ch.  J.)  ;  Van  Rensselaer  v.  Jewett,  2  N.  Y.  141  ;  Smith  v. 
Whitbeck,  13  Ohio  St.  471  ;  Chipman  v.  Emeric,  3  Cal.  283 ;  Gaskill  v.  Trainer, 
Id.  334  ;  Gage  v.  Bates,  40  Id.  384. 

619 


*o93  RENT.  [Ch.  X.  S.  3. 

iill}'  be  recovered  (?').  The  law  on  the  question  of  penalty 
or  liquidated  damages  may  now  be  considered,  after  a 
great  number  of  decisions,  not,  perhaps,  all  of  them  strictly 
reconcilable  with  each  other,  to  be  at  length  satisfactorily 
settled :  and  the  hinge  on  which  the  decision  in  every  par- 
ticular case  turns  is  the  intention  of  the  parties,  to  be  collected 
from  the  language  they  have  used.  The  mere  use  of  the 
term  "  penalty,"  or  the  term  "  liquidated  damages,"  does  not 
determine  that  intention ;  bvit,  like  any  other  question  of 
construction,  it  is  to  be  determined  by  the  nature  of  the  pro- 
visions and  the  language  of  the  whole  instrument.  One 
circumstance,  however,  is  of  great  importance  towards  ar- 
riving at  a  conclusion  ;  if  the  instrument  contains  many 
stipulations  of  varying  importance,  or  relating  to  objects  of 
small  value  calculable  in  money,  there  is  the  strongest  ground 
for  supposing  that  a  stipulation,  applying  generally  to  a 
breach  of  all  or  any  of  them,  was  intended  to  be  a  penalty, 
and  not  in  the  way  of  liquidated  damages  Qi). 

Forfeiture  of  a  deposit.  — Where  a  deposit  is  made  to  secure 
the  due  performance  of  a  written  contract,  and  it  is  to  be 
forfeited  in  case  of  any  breach,  such  forfeiture  may  be 
enforced,  and  is  not  considered  as  a  penalty  (V)  ;  or,  instead 
thereof,  the  amount  of  damage  actually  sustained  may  be 
recovered  (wt). 

Increased  rent  for  tillage.  —  Where  there  is  a  reservation  of 
bl.  per  ac]-e  during  the  last  twenty  3'ears  of  a  term,  for  every 
acre  of  meadow  which  the  tenant  shall  plough,  or  convert 
into  tillage  during  the  said  last  twenty  years  of  the  term, 
and  so  after  that  rate  for  any  greater  or  less  quantity  than 
an  acre,  or  less  time  than  a  year,  it  is  considered  that  the 
rent  is  due  in  the  last  twenty  years,  if  the  land  is  then 
plouglied,  whether  it  was  first  ploughed  within  the  last 
twenty  years,  or  before ;  and  the  rent  continues  payable 
during  the  twenty  years,  tliough  tlie  land  be  again  laid  down 
to  permanent  grass  (w).     I'lic  riglit  to  additional    rent    for 

CO  Ante,  302,  note  (»/).  {in)  Iccly  v.  Grew,  G  N.  &  M.  407. 

(/c)  Ante,  392,  note  ((/).  (»)  liircli  r.  StepIuMiaon,  3  Taunt. 

CO  Hiiiton  V.  Sparkos,  L.  R.,  3  C.  4r.O  ;  IIowclI  v.  Uicliards,  11  East, 
P.  1(51;  37  L.  J.,  C.  1'.  bl.  <(.'53  ;  Hac.  Abr.  tit.  Rent  CF.). 

G18 


Ch.  X.  S.4.]  WHEN   RENT   IS   DUE.  *394 

over  tillage  is  not  waived  by  the  acceptance  of  the  reserved 
rent  with  a  knowledge  of  the  breach  (y). 

Increased  rent  in  publican's  lease  for  not  taking  lessor's  beer. 
—  The  provision  sometimes  inserted  in  a  publican's  lease, 
that  the  lessee  shall  take  all  his  beer  fiom  the  lessor,  or  else 
pay  an  advanced  rent,  has  been  much  censured  by  the  courts  ; 
and,  at  all  events,  such  a  covenant  is  subject  to  an  implied 
condition,  and  cannot  be  enforced  unless  the  lessee  be  sup- 
[)lied  with  good  beer  (j9). 


*  Sect.  4.  —  When  Rent  is  due.  [*394] 

Rent  is  due  in  morning,  must  be  demanded  at  sunset,  is  in 
arrear  after  midnight.  —  The  rules  of  the  common  law  with 
respect  to  the  time  when  rent  is  due,  and  when  it  must  be 
demanded,  are  very  curious  and  precise.^  It  seems  that  rent 
is  due  in  the  morning  of  the  day  appointed  for  payment,  but 
it  is  not  in  arrear  until  after  midnight  (  q). 

Just  before  and  at  sunset  is  the  time  appointed  by  law 
to  make  a  proper  demand  of  it  (/•),  to  take  advantage  of  a 
condition  of  re-entry  ;  ^  the  demand  should  be  made  such 
time  before  sunset  as  to  allow  sufficient  light  to  count  the 

(o)  Denton  v.   Richmond,   1   C.   &  (7)  Dibble  v.  Bowater,  2  E.  &  B. 

M.  734.  504;   Cutting  v.   Derby,   2    W.   Blac. 

(p)    Cooper   V.    Twibill,   3    Camp.  1077;  Leftley  ?'.  Mills^  4  T.  R.  473; 

286;  Holcombe  v.  Hewson,  2  Camp.  Bac.  Abr.  tit.  Rent  (H.). 

391;  Staneliffe,  app.,  Clarke,  resp.,  7  ())  Duppa  v.  Mayo,  1  Saund.  287; 

Exch.  439;  21  L.  J.,  Ex.  129.  2  Salk.  578;  Cole  Ejec.  413. 

1  Rent :  ■when  due.  — ■  In  lease  for  year  (in  absence  of  different  express 
or  implied  agreement),  it  is  payable  at  end  of  year.  Manough's  Appeal,  5  W. 
&  S.  (Pa.)  432.  In  lease  from  year  to  year,  it  is  payable  at  end  of  eacli  3'ear, 
Duryee  r.  Turner,  20  Mo.  App.  34;  Ridgley  v.  Stillwell,  27  Mo.  128,  134  ; 
likewise  in  lease  for  years,  Boyd  v.  McCombs,  4  Pa.  St.  146. 

Rent  is  not  payable  (ordinarily)  until  use  and  occupation  has  been  enjoyed, 
Bordman  r.  Osborn,  23  Pick.  (Mass.)  295,299;  Wood  r.  Partriilgc,  11  Mass. 
488,  and  the  entire  rent  period  lias  expired,  English  v.  Key,  39  Ala.  113,  116, 
117. 

2  Johnston  v.  Hargrove,  81  Va.  118  ;  Connor  r.  Bradley,  1  How.  211,  217; 
Jackson  v.  Harrison,  17  Johns.  (N.  Y.)  00,  71 ;  Remsen  v.  Conklin,  18  Id.  447, 
450  {}i€r  Spencer,  Ch.  J.)  ;  Van  Rensselaer  v.  Jewett,  2  N.  Y.  141  ;  Smith  ;;. 
Whitbeck,  13  Ohio  St.  471  ;  Ciiipman  i-.  Emeric,  3  Cal.  283 ;  Gaskill  v.  Trainer, 
Id.  334 ;  Gage  v.  Bates,  40  Id.  384. 

619 


*395  RENT.  [Ch.  X.  S.  4. 

money  (s)  ;  the  person  making  the  demand  must  remain  on 
the  hind  till  the  sun  has  set;  and  the  demand  must  be 
actually  or  constructively  continued  till  that  time  (i).  The 
court  will  not  take  judicial  notice  of  the  time  of  sunset  on 
a  particular  day,  that  must  be  proved  by  evidence  (m).  A 
demand  made  on  the  proper  day  at  one  o'clock  is  clearly 
bad  (.-c),  although  a  tender  by  the  tenant  or  his  agent  at  any 
time  before  or  after  sunset  would  be  sufficient  to  save  the 
forfeiture  (^). 

Death  of  landlord  on  rent-day.  —  Where  a  lessor,  tenant  in 
fee,  died  after  sunset  and  before  midnight,  it  was  held  that 
the  heir  and  not  the  executor  was  entitled  to  the  rent  (2)  ; 
but  payment  to  the  lessor  or  his  agent  on  the  morning  of  the 
rent-day,  the  lessor  dying  before  noon,  is  valid  as  against  the 
heir,  though  not  against  the  crown  (a).  Where  the  rent  was 
reserved  payable  on  Michaelmas-day,  and  the  lessor  died  on 
that  day  between  three  and  four  o'clock  in  the  afternoon 
before  sunset,  and  a  question  was  raised  whether  the  exec- 
utor or  the  heir,  or,  which  is  the  same,  the  jointress  of  the 
lessor,  should  have  the  rent,  it  was  held  that  the  rent  should 
go  to  the  heir  or  jointress  (5). 

Payment  of  rent  in  advance.  —  Payment  before  the  day  is 
voluntary  and  a  payment  of  a  sum  in  gross,  and  no  satisfac- 
tion at  law  of  the  rent  (c)  ;  but  it  seems  it  will  be  otherwise 
m  equity,  for  payment  of  rent  to  the  tenant  in  tail  or  for  life, 
on  or  even  before  the  day,  where  the  tenant  in  tail  lived 
to  the  rent-day  (d')^  will  discharge  the  lessee,  though 
[*395]  if  the  tenant  in  tail  die  *  on  the  same  day,  the  re- 

(s)  Co.  Lit.  202  a;  Maund's  case,  Co.  R.  127;  Ld.  Kockinijliam  ;•.  Ten- 

7  Co.  R.  28  b;  Tinckler  i-.  Prentice,  rice,  1  1'.  Wins.  177;  1  Salk.  578;  1 

4  Taunt.  540.  Rwanst.  845,  note;  Re  Clulow,  o  Kay 

(/)    Wood    and    Ciiiver's    case,  4  &  J.  080;  20  L.  J.,  Cli.  518. 
Leon.  179;  Acocks  v.  Phillips,  5  II.  {n)  Clun's  case,  10  Co.  R.  127  b. 

&  N.  183.  (/>)  Ld.  Rockingham  v.  Penrice,  1 

(»)   Collier  i;.  Nokcs,   2    C.    &   K.  P.  Wms.  177;  1  Salk.  578;  1  Swnnst. 

1012.  345,  note;  Rac.  Abr.  tit.  Rent  (H.). 

(x)  Doe  rf.  Wheeldon  v.  Paul,  3  C.  (<)  Clun's  case,  10  Co.  R.  127  b; 

&  ]'.  013.  Ld.  Cromwell  v.  Andrews,  Cro.   Kliz. 

(//)  Plow.   172  a;   Co.  Lit.  202  a;  15. 
Cropp  )>.  Ilunihcrton,  Cro.  Eliz.  48.  (J)  Lord  Rockinfiliam   ?•.  Penrice, 

{z)  ()iipf)!t  IK  Mayo.  2  Salk.  578;  1  sujtra ;  Bac.  Abr.  lit.  Kent  (M.). 
Wms.    Saund.   287;    Chin's  case,    10 

G20 


Cii.  X.  S.  4.]  WHEN   RENT    IS    DUE.  *395 

mainder-man  is  entitled  to  recover  the  rent  so  paid 
fi'oni  his  representatives.  If  a  tenant  make  a  payment  in 
advance,  and  the  landlord  dies  before  the  rent-day,  the  pay- 
ment may  be  pleaded  by  way  of  an  equitable  defence,  to  an 
action  by  the  landlord's  executors  for  the  rent  (e).  But  a 
payment  of  rent  in  advance  is  not  within  4  Ann.  c.  16,  s.  10, 
so  as  to  discharge  the  tenant  from  his  obligation  to  pay  rent 
to  the  assignee  of  the  reversion,  in  case  he  received  notice  of 
the  assignment  before  the  rent  is  due  (/).^ 

At  what  days  rent  is  due.  —  Where  rent  is  reserved  gener- 
ally, and  no  mention  is  made,  as  is  usual,  of  half-yearly  or 
quarterly  payments,  nothing  is  due  until  the  end  of  the 
year  (//)  :  and  where,  after  signing  a  written  agreement  which 
made  no  mention  of  the  time  when  the  rent  was  to  be  paid, 
the  landlord  asked  the  tenant  how  he  would  like  to  pay  the 
rent,  and  the  tenant  replied  quarterly,  and  the  rent  was 
accordingly  paid  quarterly,  it  was  held  that  the  rent  was  still 
due  annually,  and  not  quarterly  (It).  Where  there  is  a  gen- 
eral reservation  of  a  yearly  rent,  a  clause  to  put  an  end  to 
the  term,  by  notice  expiring  on  any  quarter  day,  will  not 
make  the  rent  payable  quarterly  (^).  In  a  case  where  an 
agreement  was  dated  the  21st  of  January,  and  a  person 
thereby  agreed  to  become  tenant,  "  at  the  customary  time  of 
entry,"  at  a  certain  rent  to  be  "  paid  at  the  usual  time,"  "  as 
agreed  upon ; "  and  he  entered  at  Lady-day,  the  usual  time 
of  entry  being  the  12th  of  May,  the  usual  time  of  rent  becom- 

(e)  See  Nash  v.   Gray,  2   F.   &  F.  Iain,  4  C.  &  P.  2G0  ;  Coombor  v.  How- 

391.  ard,  1  C.  B.  440. 

(/)  De  NicoUs  v.  Saunders,  39  L.  (/i)   Turner   v.   Allnay,  Tyr.   &   G. 

J.,  C.  P.  297;  Cook  v.  Guerra,  41  L.  819. 

J.,  C.  P.  89.  (i)  Collett  V.  Curling,  10  Q.  B.  785; 

{g)  Cole  V.  Sury,  Latch,  264  ;  Com.  5  I).  &  L.  605. 
Dig.  Rent  (B.),  8;  Gray  v.  Chamber- 

1  A  bona  fide  payment  in  advance  is  good  against  a  subsequent  assign- 
ment of  reversion,  Ala.  Gold  Life  Ins.  Co.  v.  Oliver,  78  Ala.  158;  Westmore- 
land V.  Foster,  60  Id.  448  ;  Stone  v.  Patterson,  19  Pick.  (Mass.)  470  ;  Farley 
V.Thompson,  15  Mass.  18;  a  fortiori,  if,  by  the  terms  of  the  contract,  the 
rent  was  payable  in  advance,  Farmers  and  Mechanics'  Bank  v.  Ege,  9  Watts 
(Pa.)  436. 

A  prior  mortgagee  can  require  lessee  to  pay  rent  over  again.  McDevitt  v. 
Sullivan,  8  Cal.  592. 

There  is  a  special  statute  in  Pennsylvania  which  affects  judicial  sales. 

621 


*396  RENT.  [Ch.  X.  S.  5. 

ing  payable,  being  once  a  year,  at  Michaelmas,  and  the  rent- 
day,  when  it  was  paid,  being  the  8th  January:  it  was  held, 
that  there  was  evidence  that  the  rent  was  payable  at  Michael- 
mas, and  that  it  was  not  necessarily  payable  at  the  end  of  the 
year,  from  the  time  of  entry  (k').  When  the  rent  is  made 
payable  on  certain  da3'S  in  the  year,  it  is  due  on  the  first  of 
the  days  occurring  in  point  of  time,  without  regard  to  the 
local  order  of  the  words  (/}.  If  rent  is  intended  to  be  made 
payable  in  advance,  such  intention  should  be  clearly  ex- 
pressed (m).  A  covenant  that  a  half-year's  rent  shall  remain 
in  the  hands  of  the  tenant  till  the  last  year,  means  the  '^  cur- 
rent half-year  "(m).  Where  rent  was  reserved  quarterly, 
or  half -quarterly  if  required^  and  the  landlord  received  the 
rent  quarterly  for  the  first  twelve  months,  it  was  held,  that 
he  could  not,  without  notice,  distrain  for  a  half-quarter's 
rent  (o). 


*[396]  *  Sect.  5.  —  Payment  of  Rent. 

Rent  a  debt  of  high  nature.  —  Rent  is  considered  as  of  a 
higher  nature  than  even  a  debt  due  on  an  instrument  under 
seal,  as  between  the  parties  themselves.  In  the  case  of  the 
death  of  the  tenant,  it  was,  })rior  to  the  act  32  &  33  Vict, 
c.  46,  of  equal  degree  with  specialty  debts,  so  as,  in  the  dis- 
tribution of  the  deceased's  estate,  to  be  payable  with  debts  of 
tliat  degree  ( p) ;  but  now,  by  virtue  of  that  statute,  all  the 
creditors  of  a  deceased  person  are  treated  as  standing  in 
equal  degree.  Rent  in  arrear  is  no  part  of  the  reversion; 
and  therefore  when  rent  becomes  due  after  delivery  to  the 
sheriff  of  a  writ  of  elegit  against  the  lessor,  but  before  inqui- 
sition taken  thereon,  it  is  not  payable  to  the  execution 
creditor  (</). 

Attachment  of  rent.  —  Rent  due  and  owing  to  a  judgment 
del)tor  may  lie  ordered  by  a  divisional  court,  a  judge,  or  a 

C/l)  Gore  i;.  Lloyd,  12  M.  &W.  4(53.  (/>)    Tliompson    v.    Thompson,    9 

(/)  Hill  V.  Gr!Uij,'c',  IMowd.  171.  I'rice,  471. 

(;«)  Ante,  Sect.  1.  Cv)  Sharp  (■.  Key,  8  M.  &  W.  379; 

(n) V.  NiiJioils,  Lofft,  393.  9  Dowl.  770. 

(o)  Mallain  v.  Ardeii,  10  Bitig.  299. 

622 


Ch.  X.  S.  5.]  PAYMENT   OF    UKXT.  *397 

master,  to  be  attached  in  the  hands  of  his  tenant,  as  a  debt, 
under  the  Rules  of  the  Supreme  Court  (Order  XLV.,  Rule 
2)(/-).  But  accruing-  rent  not  due  cannot  be  so  attached (.s-). 
Rent  which  is  overdue  cannot  be  attached  under  a  foreign 
attachment  in  London  (^). 

Payments  to  wrong  person.  —  A  payment  of  rent,  by  mistake 
or  misrepresentation  to  a  person  not  entitled  to  demand  it, 
does  not  preclude  the  tenant  from  showing  that  the  person 
to  whom  it  was  paid  was  not  entitled  to  it(w.),  but  the  onus 
of  proof  is  shifted.  Therefore,  if  A.,  who  is  a  tenant  for  life 
subject  to  forfeiture,  with  remainder  over  to  B.,  lease  to  C. 
for  a  term,  and  afterwards,  apprehending  that  he  has  foifeited, 
acquiesce  in  B.'s  claiming  and  receiving  the  rent  from  C; 
his  executor  may,  on  showing  that  he  acquiesced  under  a 
false  apprehension,  recover  from  C.  the  amount  of  the  rent 
erroneously  paid  to  B.  (a;).  Where  an  old  corporation,  before 
the  Municipal  Reform  Act,  were  trustees  of  a  charity,  and  a 
tenant  of  the  charity  paid  rent  after  the  new  corporation  came 
into  office  to  the  secretary  of  the  old  corporation,  who  still 
continued  as  charity  trustees,  it  was  held  that  this  was  a  good 
payment  as  against  the  new  corporation  (?/). 

Allowances  by  mistake  of  deductions.  —  An  allowance  by 
w^ay  of  deduction  from  the  rent,  even  though  made  by  mis- 
take, operates  as  payment  of  the  rent,  pro  tanto :  thus 
*  where  a  tenant  paid  rent  regularly  to  the  landlord's  [*397] 
agent,  deducting  a  sewers  rate,  which  by  the  terms  of 
the  agreement  under  which  the  tenant  held  he  ought  himself 
to  have  paid,  it  was  held,  that,  in  an  action  to  recover  the 
sums  so  deducted  as  arrears  of  rent,  a  plea  of  payment  was 
supported  by  the  facts  (2). 

(r)  Mitchell  v.  Lee,  8  B.  &  S.  92 ;  («)    Rogers    v.   Pitcher,   6    Taunt. 

L.  K.,  2  Q.  B.  259;  decided  on  s.  62  202. 

of  the  Common  Law  Procedure  Act,  (.r)   Williams    v.   Bartholomew,    1 

1854,  from  which  Order  XLV.,  Rule  Bos.  &  P.  320;    Gregory  ;;.    Doidge, 

2,  differs  only  in  enlarging  the  discre-  o  Bing.  474;  Claridge  v.  Mackenzie, 

tion  of  the  court.  4  M.  &  G.  148. 

(.s)  Jones  V.  Thompson,  27  L.  J.,  Q.  (//)  Mayor,  &c.  of  Ludlow  i\  Cliarl- 

B.  234 ;  and  see  for  the  general  prin-  ton,  9  C.  &  P.  242. 

ciple,  Tapp  v.  Jones,  L.  R.,  10  Q.  B.  (s)  Waller  v.  Andrews,  3  M.  &  W. 

591.  312;  Bramston  v.  Robins,  4  Bing.  11. 

(0    Com.    Dig.    Attachment    (1).), 
cited  8  B.  &  S.  95. 

628 


*397  RENT.  [Ch.  X.  S.  5. 

Rent  is  payable  on  the  land,  except  in  the  case  of  a  covenant. 
—  Rent  reserved,  payable  3^early,  or  otherwise,  is  to  be  paid 
on  the  land,  because  the  land  is  the  debtor,  and  that  is  the 
place  of  demand  appointed  by  law:^  so  if  a  man  lease,  render- 
ing rent,  and  the  lessee  binds  himself  in  a  sura  to  perform  the 
covenants,  this  does  not  alter  the  place  of  payment  of  the 
rent,  for  it  may  be  tendered  on  the  land  without  seeking 
the  obligee,  excej)t  where  the  condition  is  for  the  perform- 
ance of  homage  or  other  corporeal  service  to  the  person  of 
the  lord  (a).  This,  however,  which  is  a  rule  of  the  common 
law,  applies  only  to  re-entry  for  non-payment  of  rent,  and 
not  to  an  action  on  the  covenant  to  pay  it.  Such  a  covenant 
(if  no  particular  place  of  payment  be  mentioned)  is  analogous 
to  a  covenant  to  pay  a  sum  of  money  in  gross  on  a  day  certain, 
in  which  case  it  is  incumbent  on  the  covenantor  to  seek  out 
the  person  to  be  paid,  and  pay  or  tender  him  the  money,  for 
the  simple  reason  that  he  has  contracted  so  to  do.  So  it  was 
held  in  the  considered  case  of  Haldane  v.  Johnson  (6),  where 
the  authorities  for  this  somewhat  harsh  doctrine  (which 
applies,  if  only  the  landlord  be  intra  quatuor  maria)  will  be 
found  carefully  examined.  The  lessee  of  the  crown  must 
pay  his  rent,  without  demand,  at  the  Exchequer,  wherever  it 
may  be;  but  if  the  crown  grant  the  reversion,  the  rent  must 
be  demanded  on  the  land  before  the  grantee  can  enter  as  for 
a  forfeiture  on  non-payment  (c). 

Remittance  of  rent  through  post.  —  Like  any  other  species  of 
debt,  rent  is  often  paid  by  a  remittance  by  the  post.  But 
remitting  through  the  i)Ost  is  departing  from  the  mode  of 
payment  marked  out  by  law,  and  in  the  absence  of  a  recogni- 
tion by  the  landlord  of  the  use  of  the  post,  the  loss  by  post 
would  fall  on  the  tenant.  It  has  been  held  that  if  a  tenant 
Ix!  directed  by  his  landlord  to  remit  money  by  the  post,  and 
it;  be  lost,  the  latter  must  bear  the  loss  (<?) ;  but  even  in  this 


(n)  Co.  Lit.  201  b;  Kowe  v.  Younp,  (/>)  8  Exoh.  080;   17  Jur.  n.37  ;   22 

2  Brod.  &  B.  2.'}4  ;  Slicp.  Touch.  .'JTH ;  L.  J.,  Ex.  204. 

Crouch    V.    Falstolfo,    Sir   T.    Bayni.  (c)  Biic.  Abr.  tit.  Rent  (1.). 

418;  Com.  Dig.  Picador  (2  W.  4!)).  {d)  Warwick  v.  Noakes,  Tcakc,  07. 

*  Sec  cases  cited  nnir,  sec.  4,  note  2. 

G24 


Ch.  X.  S.  5.]  PAYMENT   OF   RENT.  *398 

case,  it  is  said,  the  tenant  must  show  due  caution  (g),  such 
as,  in  the  present  day,  using  a  registered  letter.  It  is  prolj- 
able  that  sliglit  evidence  of  an  implied  recognition  ])j  tlie 
landlord  of  the  use  of  the  post  would  be  held  sufficient;  but 
in  every  case  it  would  be  desirable  to  obtain  an  express  recog- 
nition by  the  landlord,  once  for  all,  of  the  mode  of  payment. 
Where  a  creditor  in  the  country  directed  his  debtor 
to  pay  money  into  a  *  London  banking-house  to  his  [*398] 
account,  and  had  no  account  with  the  house  but 
through  a  country  banker ;  it  was  held,  that  a  payment  there 
to  the  credit  of  his  account  with  the  country  banker  was  a 
discharge  to  the  debtor  (/).  Generally,  a  creditor  may  insist 
upon  payment  being  made  either  to  himself  or  Iris  agent ;  but 
having  authorized  payment  to  his  agent,  he  cannot  revoke 
that  authority,  if  the  debtor  have  given  such  a  pledge  to  pay 
pursuant  to  the  authority  as  would  bind  him  in  a  court  of 
law  (g'). 

Payment  by  bills  or  notes.  —  If  the  landlord  take  a  security 
for  rent  in  arrear  —  as  if  he  take  a  bond,  bill  of  exchange,  or 
promissory  note  —  his  so  doing  will  not  of  itself  amount  to  a 
payment  of  the  rent,  nor  bar  him  of  his  remedies  peculiar  to 
the  recovery  of  rent.^  So  it  was  held  in  Davis  v.  Gyde  (A), 
it  having  been  previously  ruled  at  nisi  prius,  that  where  the 
tenant  gave  a  note  of  hand  for  rent  in  arrear,  and  took  a 
receipt,  he  could  not  sue  the  landlord  in  trespass  for  a  dis- 
tress, but  that,  notwithstanding  the  note,  the  landlord  might 
distrain,  as  the  note  was  no  alteration  of  the  debt  till  pay- 
ment (J).  In  another  case,  a  tenant  being  indebted  for  rent, 
his  landlord's  agent  received  from  the  tenant  a  bill  of  ex- 
change for  the  amount,  which  he  endorsed  over,  and  paid 
tlie  rent  to  the  landlord,  crediting  it  in  his  accounts  as  if  the 
tenant  had  paid  the  money.  The  landlord  having  distrained 
for  rent,  it  was  held  to  be  a  question  for  the  jury  whether 

(e)   Hawkins  v.  Rutt,  Peake,  186.  v.  King,  5  B.  &  A.  165;  Smith  L.  & 

(/)   Breed  v.  Green,  Holt,  204.  T.  169  (2nd  ed.). 
(jr)   Hodgson  v.  Anderson,  3  B.  &  {i)  Harris  i'.  Shipway  and  Ewer  v. 

C.  842.  Lady  Clifton,  Bull.  N.  P.  182;  Seven 

(h)  2  A.  &  E.  624;  and  see  Murray  v.  Mihil,  1  Ld.  Ken.  370. 

^  See  post,  ch.  11,  sec.  10  (a),  note,  "  Distress  :   when  may  be  made." 

625 


*399  RENT.  [Ch.  X.  S.  5. 

the  transaction  amounted  to  a  discount  of  the  bill  by  the 
agent  for  the  tenant,  or  a  mere  advance  of  rent  by  the  agent 
to  the  landlord,  in  which  latter  case  he  was  entitled  to  dis- 
train (k').  Where  to  covenant  for  rent  against  three  defend- 
ants, it  was  pleaded  that  41?.  of  the  rent  was  paid ;  that  of 
the  residue  two  of  the  defendants  had  paid  their  shares,  and 
that  the  other  had  given  the  plaintiff  a  promissory  note  for 
his  share  payable  at  a  banker's ;  that  such  note  Avas  dishon- 
oured, whereupon  the  plaintiff  sued  him  and  had  judgment 
by  default  on  the  note,  which  judgment  was  still  unsatisfied ; 
it  was  held,  that  the  judgment  was  no  merger,  being  obtained 
on  a  collateral  security,  and  not  having  produced  actual  sat- 
isfaction (/).  In  Davis  v.  Gyde,  however,  which  was  decided 
on  demurrer,  more  than  one  member  of  the  court  pointed  out 
that  a  special  agreement,  made  at  the  time  of  the  note,  for 
suspending  the  distress,  might  have  suspended  the  right  to 
distrain.  Davis  v.  Gyde  has  not  been  questioned,  but  it  seems 
to  bear  very  hardly  on  the  tenant,  and,  although  it  is  not 
likely  to  be  overruled,  it  is  submitted  that  it  is  in- 
[*399]  correct,  on  the  ground  that  the  acceptance  of  a  *  nego- 
tiable security  constitutes  an  implied  suspension  of 
the  right  to  distrain,  and  that  the  substitution  of  the  simple 
remedy  upon  a  note  for  the  more  cumbrous  remedy  other- 
wise open  to  the  landlord  is  a  good  legal  consideration.  A 
similar  remark  will  apply  to  Skerry  v.  Preston  (w),  in  which 
it  was  held  that  an  agreement  to  take  interest  did  not  post- 
pone the  riglit  of  distress. 

Stamp  duty  on  receipts  for  rent.  —  Receipts  or  discharges 
given  for  the  payment  of  rent  required  to  be  stamped 
with  a  penny  stamp  if  the  sum  received  amounts  to  21.  or 
upwards  (n). 

Where  a  landlord  fraudulently  and  improperly  received 
various  sums  of  money  from  several  of  liis  tenants,  and  the 
evidence  of  payments  by  them  consisted  of  memoranda  of 
accounts  delivered   to   the   tenants    in   which   the    items    in 


(/•)   Tarrott  v.  Anderson,  7  Exch.  (n)   Stamp    Act,    1870   (;13    &   o4 

9.1 ;  Grifiitlis  v.  Cliichesttr,  Id.  95.  Vict.  c.  !)7),  ss.  120-123,  and  Schedule, 

(/)   Drake  r.  Mitchell,  3  East,  251.  tit.  Receipt, 
(m)  2  Chit.  li.  245. 

626 


Cu.  X.  S.  5.]  PAYMENT    OF   RENT.  *400 

question  were  set  down,  and  to  each  of  which  the  landk)rd 
wrote  the  word  "  paid ; "  it  was  held,  that  such  memoranda 
were  admissible  in  evidence  without  a  stamp,  when  coupled 
Avith  entries  in  the  steward's  books  to  the  same  effect  (o). 
A  paper  signed  by  the  lessor  in  this  form  —  "Mr.  J.  (the 
lessee)  having  written  off  the  sum  of  121.  from  his  mortgage 
debt,  being  five  quarters'  rent  of  his  house,  I  hereby  dis- 
charge the  same  rent  to  the  24th  day  of  July  last"  —  re- 
quires a  receipt  stamp  (p).  A  paper  in  form  of  a  receipt, 
if  it  is  not  given  in  evidence  as  a  receipt,  does  not  require  a 
stamp  ((7)  ;  and  an  unstamped  receipt  may  be  used  by  a  wit- 
ness who  can  prove  the  fact  independently,  to  refresh  his 
memory  (r). 

"When  payment  of  ground-rent  operates  as  payment  pro  tanto 
o^  the  rent.  —  A  payment  of  ground-rent  by  the  tenant,  in  de- 
fault of  payment  by  his  mesne  landlord,  may  operate  as  pay- 
ment pro  tanto  of  the  rent  claimed  by  the  latter  (s)  ;  and 
growing  rent  may  be  discharged  by  such  payments  as  well 
as  rent  actually  due  (0-  Such  payments  are  not  the  less 
compulsory  because  the  ground  landlord,  on  demanding  the 
ground-rent,  allows  the  occupier  time  to  pay  (^).  Where  a 
stranger  received  rent  due  to  the  testator  in  his  lifetime, 
and,  afterwards  by  desire  of  the  tenant  in  possession,  paid 
the  demand,  of  ground-rent  due  at  the  same  time  for  the  said 
premises ;  it  was  held,  that  he  might  deduct  such  payment 
in  an  action  by  the  executor  for  the  rent,  but  not  a  payment 
of  ground-rent  arising  after  the  death  of  the  testator  (u). 

Payment  of  taxes,  rates,  &c.  —  A  payment  of  property-tax 
operates  as  a  payment  pro  taijto  of  the  rent,  notwithstanding 
any  stipulation  in  the  lease  to  the  contrary  (v).  So  a  pay- 
ment of  land-tax,  sewers-rate,  rent-charge,  in  lieu  of 
tithes,  *  and  other  charges  of  the  like  nature,  may,  [*400] 
in  the  absence  of  any  express  stipulation  for  their 

(0)  Clarke  v.  Hougham,  3  D.  &  R.  (.s)  Doe  v.  Hare,  2  C.  &  M.  145. 

325.  (0  Carter  v.  Carter,  6  Bing.  400 ; 

(/>)  Lucre  v.  Jones,  5  Q.  B.  949.  Sapsford  v.  Fletcher,  4  T.  R.  511. 

(7)  Brookes  v.  Davies,  2  C.  &  P.  («)  Wilkinson  v.  Cawood,  3  Anst. 

186 ;  Matheson  v.  Ross,  2  H.  L.  Cas.  905. 

280.  (y)  Post,  Chap.  XV. 

(r)  Rambert  v.  Cohen,  4  Esp.  213. 

627 


*400  RENT.  [Ch.  X.  S.  G. 

payment  by  the  tenant,  operate  as  a  payment  pro  tanto  of 
the  rent,  and  be  deducted  accordingly  on  the  next  payment 
of  rent  (.t). 

When  other  payments  may  be  deducted.  —  It  has  been  said 
that  wherever  a  tenant  may  be  ousted  from  his  occupation 
on  default  made  of  a  payment  by  his  landlord,  he  may  pay 
in  his  discharge  and  for  the  redemption  of  the  premises,  and 
deduct  such  payment  from  his  rent  (^).  Such  payments,  in 
event  of  the  tenant  being  sued  for  the  whole  rent,  would 
seem  to  fall  within  the  scope  of  the  Rules  of  the  Supreme 
Court,  1883  (Order  XIX.  Rule  3),  by  which  "  a  defendant  in 
an  action  may  set  off  or  set  up  by  way  of  counter-claim 
against  the  claims  of  the  plaintiff,  any  right  or  claim, 
whether  such  set-off  or  counter-claim  sound  in  damagfes  or 
not,  and  such  set-off  or  counter-claim  shall  have  the  same 
effect  as  a  cross  action."  Even  before  the  Judicature  Acts, 
it  was  held  that  in  an  action  for  rent  the  tenant  might  avail 
himself  of  a  part  payment  obtained  from  him  under  a  distress 
or  a  judgment  of  the  County  Court  for  the  same  rent  (2), 
and  that  where  a  landlord  was  bound  to  repair,  and  the  ten- 
ant was  obliged  by  sudden  accident  to  make  repairs,  in  order 
to  prevent  further  mischief,  the  tenant  might  set  off  the 
money  laid  out  in  the  repairs  (a).  It  was,  however,  held 
that  there  could  be  no  set-off  where  the  tenant  paid  as  rent 
a  sum  to  prevent  a  person  ejecting  him  from  a  portion  of  the 
land  to  which  he  claimed  title  from  the  lessor  prior  to  the 
lease  (h). 


Sect.  6.  —  Apportionment  of  Rent. 

Ta)  Apportionment  in  respect  of  Estate. 

By  act  of  law.  —  Apportionment  of  rent  in  respect  of  estate 
takes  place  by  act  of  law  where  lands  demised  at  an  entire 
rent  become  divided  among  different  persons ;  thus,  if  free- 
hold and  leasehold  premises  are  let  together  at  one  rent,  an- 

(r)  Pout,  Chap.  XV.  («)  H.anncr  v.  Bean,  .3  C.  &  K.  .307. 

(»/)  Smitli  V.  IVarce,  MS.,  sittings  (n)  Waters  r.  Wcigall,  2  Anst.  57r). 

at  (iuildiiall,  after  M.  T.  43  Geo.  'i,  (h)  lioodle  v.  Cambell,  7  M.  &  G. 

Lord  Ellenborough,  C.  J.  m\ ;  2  1).  &  L.  GO.                « 

628 


Cii.  X.  S.  6]  APPORTIONMENT   OF   RENT.  *401 

apportionment  takes  place,  at  the  death  of  the  lessor,  among 
the  real  and  personal  representatives.^ 

By  alienation  pf  lessor.  —  Apportionment  at  common  law 
may  also  be  by  act  of  the  parties :  thus,  if  the  lessor  disj^ose 
of  the  reversion  in  part  of  the  lands,  either  by  deed  or 
will,  the  rent  is  apportionable  (c) ;  ^  but  the  lessee's 
*  concurrence  to  the  apportionment  is  necessary,  un-  [*401] 
less  it  be  settled  by  a  jury  (c?).^ 

By  alienation  of  lessee.  —  When  the  lessee  aliens  part  of 
the  land,  the  alienee  is  liable  for  a  proportional  part  of  the 
rent  if  the  landlord  choose  to  proceed  against  him  (e).^  Al- 
though the  landlord  has  received  rent  from  the  assignee,  the 
personal  contract  of  the  lessee  still  subsists,  and  renders  him 
liable  for  the  whole  arrears  in  an  action  of  covenant  (/).^ 

By  surrender.  —  When  the  lessee  surrenders  part  of  the 
land  to  the  lessor,  the  rent  for  the  remainder  is  apportioned. 
It  would  seem  that  the  rent  should  be  apportioned,  not  ac- 
cording to  the  quantity,  but  according  to  the  value  of  each 
part  as  improved  by  buildings,  &c.  (/y). 

Eviction  of  lessee.  —  Where  the  lessee  is  evicted  from  part 
of  the  lands  hy  title  para7)iount,  he  will  have  to  pay  a  ratea- 


(c)  West  V.  Lascelles,  Cro.  Eliz.  (/)  Bachelour  and  Gage's  case, 
851;  Collins  and  Harding's  case,  13  Cro.  Car.  188;  Ipswich  (Bailiff)  v. 
Co.  R.  57  a ;  Cro.  Eliz.  609,  622.  Martin,    1    Roll.    Abr.    235,   pi.    17  ; 

(d)  Bliss  V.  CoUings,  5  B.  &  A.  876.  Orgill  v.  Kemshead,  4  Taunt.  042. 

(e)  Stevenson  v.  Lambard,  2  East,  (^r)  Smith  v.  Malings,  Cro.  Jac. 
575.  100;  Anon.,  Moor,  114. 


1  That  leasehold  property  passes  to  executor  or  other  personal  representa- 
tives carrying  the  rents,  botli  accrued  and  unaccrued,  see  cases  cited  ante, 
Chap.  VII.,  sec.  13  (b),  note,  "  Chattels  real."  That  rents  accrued,  botli  of  free- 
liolds  and  leaseholds,  pass  to  executors,  see  note,  "  Accrued  rents,"  same  sec- 
tion. That  rents  accruing  subsequently  to  decedents'  death  belong  to  the 
heirs,  see  note,  "Rents  :  when  belonging  to  heirs  and  devisees  "  and  "  Rela- 
tions to  realty,"  same  section. 

2  Assignees  of  reversion  of  part  of  premises  are  entitled  to  proportionate 
part  of  rent,  and  assignee  of  entire  reversion  to  entire  rent  subsequently  accru- 
ing. See  ante,  Chap.  VII.,  sec.  3,  note,  "  Severance  of  reversion,"  and  sec.  2, 
note,  "Assignment  of  reversion,"  and  sec.  9,  note,  "Purchase  of  reversion." 

3  Rose,  J.,  in  Boulton  v.  Blake,  12  Ont.  532,  538. 

*  See  ante,  Chap.  VII.,  sec.  6,  note,  "  Severance  of  term." 

*  See  ante,  Chap.  VII.,  sec.  5,  note,  "  Effect  of  assignment  of  term." 

629 


*401  RENT.  [Ch.  X.  S.  6. 

ble  proportion  for  the  remainder  (/«)  ;  ^  but  if  lie  be  evicted 
from  part  of  the  hinds  hy  his  landlord  (or  his  assigns),  no 
apportionment,  but  a  suspension  of  the  whole  rent,  takes 
phice  (i).i     There  is  no  suspension,  however,  if  the  eviction 

(A)  Gilb.    Rents,    147  ;     Smith    v.  (0  Smith  L.  &  T.  287  (2nd  ed.)  ; 

Malings,  Cro.  Jac.  160;  1  Roll.  Abr.  but  the  tenant  must  perform  all  his 

235;  Stevenson  v.  Lambard,  2  East,  covenants;  as  to  repair,  &c.,  Newton 

575;  Boodle  v.  Cambell,  7  M.  &  G.  v.  AUin,  1   Q.  B.   517;   Morrison   j;. 

386;  2  D.  &  L.  66;   McLoughlin   v.  Chadwick,  7  C.  B.  283. 
Craig,  7  Ir.  Com.  L.  R.  117. 

^  Eviction  of  lessee. —  (a)  Partial  eviction  by  third  parti/,  under  title  para» 
mount,  discharges  claim  for  rent  pro  tanto.  Poston  v.  Jones,  2  Ired.  Eq.  (N. 
C.)  350  ;  Fillebrown  v.  Hoar,  124  Mass.  580  ;  Djett  v.  Pendleton,  8  Cow.  (N. 
Y.)  727  {per  Spencer,  Sen.). 

(/>)  Partial  eviction  bi/  lessor  discharges  entire  rent.  Christopher  v.  Austin,  11 
N.  Y.  216;  Colburn  y.  Morrill,  117  Mass.  2G2  ;  Fillebrown  v.  Hoar,  124  Id. 
580,  583  (per  Soule,  J.)  ;  Leishman  v.  White,  1  Allen  (Mass.)  489;  Shumway 
V.  Collins,  6  Gray  (Mass.)  227  ;  Royce  v.  Guggenheim,  106  Mass.  201 ;  Smith 
V.  Stigleman,  58  III.  141 ;  Briggs  v.  Hall,  4  Leigh  (Va.)  484  ;  Hayner  v.  Smith, 
63  111.430;  Halligan  v.  Wade,  21  Id.  470;  Lewis  v.  Payn,  4  Wend.  (N.  Y.) 
423. 

(tr)  Entire  eviction,  whether  by  lessor  or  third  party  (having  paramount  title) 
discharges  entire  unaccrued  rent.  Simers  v.  Saltus,  3  Denio,  214  ;  Dyeft  v. 
Pendleton,  8  Cow.  (N.  Y.)  727  (reversing  Pendleton  v.  Dyett,  4  Id.  581)  ; 
Cohen  i-.  Uupont,  1  Sandf.  (N.  Y.)  200;  Leopold  v.  Judson.  75  111.  536,  539 
(per  Craig,  J.)  ;  Westlake  v.  Be  Graw,  25  Wend.  (N.  Y.)  669,  672  (per  Sav- 
age, Ch.J.). 

Rent  will  not  (at  common  law)  be  apportioned  after  eviction  between  rent 
days.     Fitchburg  Man.  Co.  v.  Melven,  15  Mass.  268. 

(d)  Accrued  rent  not  barred.  —  Eviction  is  no  bar  to  prior  accrued  rent. 
Leary  v..  Meier,  78  Ind.  393. 

(e)  Actual  eviction  is  accomplished  in  divers  ways.  F»r  example,  by  taking 
possession,  putting  furniture  out,  requesting  family  to  leave,  locking  up  rooms, 
&c.,  &c.,  Fillebrown  i;.  Hoar,  124  Mass.  580;  Colburn  v.  Morrill,  117  Mass. 
262;  Christopher  v.  Austin,  11  N.  Y.  216;  Hayner  v.  Smith,  63  111.  430; 
Briggs  V.  Hall,  4  Leigh  (Va.)  484;  also  entry  by  mortgagee,  Fitchburg 
Cotton  Man.  Co.  v.  Melven,  15  Mass.  268;  Smith  v.  Sliepard,  15  Pick. 
(Mass.)  147  ;  Fitzgerald  v.  Beebe,  7  Ark.  310 ;  or  delivery  of  possession  by 
officer  under  levy,  &c..  Gore  v.  Brazier,  3  Mass.  523. 

(/)  Constructive  eviction  is  accomplishe<l  (williout  actual  entry  or  i'xi)ulsion) 
l>y  acts  of  a  permanent  (;haracter,  destroying  or  injuring  the  value  of  tlie  use 
of  the  property  to  the  lessee.  It  will  liavc  the  same  effect  as  an  actual  evic- 
tion. Mere  temporary  acts  (as  trespasses),  which  do  not  permanently  affect 
value  of  lease,  do  not  constitute  it.  What  does  constitute  it  is,  sometimes,  a 
very  nice  question. 

(7)  Eramptes  of  constructive  eviction. — Erection  of  building  imder  eaves, 
excluding  light  and  air,  Sherman  v.  Williams,  113  Mass.  481  ;  or,  on  demised 
premises,  cutting  off  the  light  ami  air  from  two  rooms,  Hoyce  »■.  Guggenheim, 
106  1(1.201;  digging  under  building  and  rendering  it  unsafe,  Skally  v.  Shute, 

630 


Ch.  X.  S.  6.]  Ari'OUTlONMENT   OF   KENT.  *401 

lias  followed  uj)on  some  wrongful  act  of  the  lessee,  such  as  a 
forfeiture  or  recovery  of  part  of  the  lands  in  an  action  of 
waste  (A;). 

(k)  Walker's  ease,  3  Co.  K.  22;  1  Roll.  Rep.  ;W1;  Moor.  203. 

132  Id.  3G7  ;  threats,  by  one  having  paramount  title,  Merrjinan  v.  Bourne,  9 
Wall.  592  ;  distraining  for  rent  due  lessee,  Lewis  v.  Payn,  4  Wend.  (N.  Y.) 
423 ;  demand  of  rent  under  tlireat  of  expulsion,  by  one  having  paramount 
title,  Holbrook  v.  Young,  108  Mass.  83  ;  Simers  v.  Saltus,  3  Denio  (N.  Y.) 
214;  demand  of  possession  by  rightful  owner,  (rreenvault  v.  Davis,  4  Hill 
(N.  Y.)  G43  ;  St.  John  v.  Palmer,  5  Id.  599  ;  Loomis  v.  Bedel,  11  N.  H.  74,  83, 
84  ;  ejectment  of  lessor  by  stranger  prior  to  entry  of  lessee,  Poston  v.  Jones, 
2  Ired.  Eq.  (N.  C.)  350;  renting  reserved  premises  for  a  liquor  saloon  and 
part  of  demised  premises  to  railroad  company,  Halligan  r.  Wade,  21  111.  470; 
muffling  door-bell,  making  abusive  and  obscene  noises  at  door,  littering  stair- 
carpet,  and  placing  snowballs  on  windows,  Cohen  c.  Dupont,  1  Sandf.  (N.  Y.) 
260 ;  escape  of  sewer  gas,  caused  by  defective  plumbing  which  lessor  was 
bound  to  repair,  Bradley  ;-.  l)e  Goicouria,  12  Daly  (N.  Y.)  393,  397. 

(A)  D;/ctt  V.  Pendleton.  —  In  Dyett  v.  Pendleton,  4  Cow.  (N.  Y.)  581,  it  was 
held  that  bringing  lewd  women  into  another  tenement  under  the  same  roof 
with  lessee,  thereby  creating  (by  their  loud  noises  in  the  night-time,  &c.)  such 
a  nuisance  that  he  was  compelled  to  leave,  constituted  a  constructive  eviction. 
This  case  is  frequently  cited  as  authority.  It  has,  however,  been  several  times 
called  a  doubtful  or  extreme  case,  viz. :  by  Savage,  Ch.  J.,  in  Etheridge  v. 
Osborn,  12  Wend.  (N.  Y.)  529,  532;  by  Nelson,  Ch.  J.,  in  Ogilvie  v.  Hull,  5 
Hill  (N.  Y.)  52,  54 ;  by  Bronson,  Ch.  J.,  in  Gilhooley  v.  Washington,  4  Comst. 
(N.  Y.)  217,  219;  by  Gray,  J.,  in  Royce  v.  Guggenheim,  106  Mass.  201,  204, 
205  ;  and  by  Endicott,  J.,  in  De  Witt  v.  Pierson,  112  Id.  8,  11. 

It  is  observable  that  the  acts  of  the  lessor  in  Dyett  v.  Pendleton  were  vol- 
untary, immoral,  and  illegal,  that  they  were  not  committed  upon  the  demised 
premises,  but  that  they  wholly  destroyed  the  value  of  the  lease.  The  court 
(per  Spencer,  Senator)  say:  "Suppose  tlie  landlord  had  established  a  hospi- 
tal for  the  small-pox  ...  in  the  remaining  part  of  his  house,  .  .  .  can  there  be 
any  hesitation  in  saying  that  ...  he  should  not  recover  for  the  use  of  that 
house  ■?  " 

(i)  Eviction  bij  third  parti/  need  not  be  b>/  process  oflaio.  — It  has  been  some- 
times held  that  eviction  by  a  third  party  must  be  by  due  process  of  law, 
Waldron  v.  M'Carty,  3  Johns.  (N.  Y.)  471  ;  Kerr  v.  Shaw,  13  Id.  236.  The 
contrary  is  now  fully  established.     See  cases  previously  cited. 

(j)  Acts  not  constituting  an  eviction. — The  following  have  been  so  held: 
Failure  to  remove  from  other  tenement  in  same  building,  after  notice,  notori- 
ous woman  who  kept  disorderly  resort  and  greatly  disturbed  lessee,  De  Witt 
V.  Pierson,  112  Mass.  8;  telling  lessee  he  had  no  right  to  use  part  of  demised 
premises,  &c..  Fuller  v.  Ruby,  10  Gray  (Mass.)  285;  erecting  fence  in  front  of 
premises,  so  that  lessee  could  not  enter  except  by  going  over  land  of  third 
party,  Boston  &  Wore.  R.  R.  Co.  v.  Ripley,  13  Allen  (Mass.)  421  ;  repeated 
trespasses  (as  carrying  away  crops,  cutting  down  fruit-trees,  removing  cook 
stove,  &c.,  Bartlett  v.  Farrington,  120  Mass.  284  ;  removal  of  chattels  of  great 
size,  fitted  to  the  room,  but  not  annexed,  Kimball  v.  Grand  Lodge,  131  Id.  63; 
erection  of  building  on  adjoining  land,  darkening  tenant's  windows.  Palmer  v. 
Wetmore,  2  Sandf.  (N.  Y.)  316;  Myers  v.  Gemmel,  10  Barb.  (N.  Y.)  537; 
demand  by  rightful  owner  to  pay  rent  and  forbidding  to  pay  to  lessor,  there 

631 


*401  RENT.  [Ch.  X.  S.  6. 

Demise  of  more  than  lessor  entitled  to.  —  Where  a  person 
demised,  at  one  entire  rent,  lands  of  which  he  was  seised  in 

being  no  attornment  to  the  rightful  owner,  Hawes  v.  Shaw,  100  Mass.  187  ; 
mere  trespass  by  lessor,  Elliott  v.  Aiken,  45  N.  H.  30 ;  Edgerton  v.  Page,  20 
N.  Y.  281  (permitting  waste  water  to  flow  down  from  leaks  in  pipes  in  upper 
stories)  ;  Bennet  v.  Bittle,  4  Rawle  (Pa.)  oid  (putting  cattle  upon  premises, 
hauling  oil  manure,  &c.)  ;  entry  to  repair  damages  caused  by  fire,  Conn.  Mut. 
Life  Ins.  Co.  i-.  U.  S.,  21  Ct.  of  Claims,  195;  failure  to  furnish  material  for 
repairs,  McFarlane  v.  Pierson,  21  111.  App.  566,  569  (per  Lacey,  J.)  ;  failure 
to  resist  sale  of  premises  for  mechanics'  lien,  Leopold  v.  Judson,  75  111.  530. 

In  Ogilvie  v.  Hull,  5  Hill  (N.  Y.)  52,  it  was  held  that  lessor's  telling  lessee's 
tenant  that  lease  had  expired,  and  advertising  premises  for  lease,  thereby 
causing  lessee  to  lose  a  sub-tenant,  did  not  constitute  an  eviction. 

{/:)  Abandonment  by  lessee;  is  it  essential  to  a  complete  eviction?  —  By  the 
weight  of  autliority,  partial  eviction  by  lessor,  even  though  lessee  continue 
upon  remainder  of  premises,  is  a  complete  defence  to  tlie  entire  rent.  Cliris- 
topher  j;.  Austin,  11  N.  Y.  216;  Leishman  v.  White,  1  Allen  (Mass.)  489;  Col- 
burn  V.  Morrill,  117  Mass.  262.  The  above  cases  are  strongly  but  indirectly 
supported  by  Shumway  v.  Collins,  6  Gray,  227,  232  (see  opinion  of  Bigelow,  J., 
in  which  he  declines  to  express  an  opinion  whether  a  quantum  meruit  would  lie 
as  not  necessary  to  the  case,  but  did  say  that  the  agreement  to  pay  rent  in 
the  lease  was  entire  and  could  not  be  severed  by  the  tortious  act  of  the  land- 
lord, &c.),  and  by  Fuller  i\  Ruby,  10  Gray  (Mass.)  285,  289,  in  which  Justice 
Metcalf,  while  not  himself  giving  an  opinion  (as  it  was  unnecessary  to  the 
decision),  points  out  that  the  English  law  makes  partial  eviction  without 
abandonment  a  complete  defence.  He  shows  also  that  the  contrary  state- 
ment in  many  text-books  originated  in  an  English  decision,  Stokes  r.  Cooper, 
3  Camp.  514  n.  since  overruled,  Upton  r.  Townend,  17  C.  B.  30,  64. 

They  are  also  supported  by  the  opinion  of  the  English  court  in  the  recent 
case  of  Boynton  v.  Morgan,  21  Q.  B.  D.  101,  106,  in  which  Cave,  J.,  said,  "If 
the  liabilit}'  still  exists,  it  must,  I  think,  exist  as  a  whole."  He  goes  on  to 
say  that  the  liability  exists  by  express  covenant,  and  that  the  law  will  not 
imply  a  modified  one. 

Leisliman  v.  Wliite,  1  Allen  (Mass.)  489,  squarely  decides  that  lessor 
after  partial  eviction  (without  abandonment)  can  neither  recover  rent  nor  for 
use  and  occupation,  Bigelow,  C.  J.,  saying,  "  To  the  claim  on  the  covenant  the 
answer  is  tlie  eviction  ;  to  the  demand  for  use  and  occupation,  tiie  answer  is 
tliat  the  defendant  holds  "under  his  lease." 

He  also  said  (which  seems  to  bear  materially  upon  the  question  of  quantum 
meruit),  "The  lease  is  not  terminated  by  tiie  unlawful  eviction."  Tiie  lease 
in  tliis  case  seems  to  have  been  under  seal;  but  in  Colburn  v.  Morrill,  117 
Mass.  262  (wlilch,  however,  seems  to  have  been  an  action  for  rent  only,  and 
not  a  quantum  meruit),  Endicott,  J.,  says,  "The  fact  tliat  a  tenant  has  no 
written  lease  does  not  affect  ids  rights  in  this  respect.  He  reviews  tlie  Eng- 
lish and  Massachusetts  cases  witli  the  same  result  stated  supra  (that  abandon- 
ment is  not  essential  to  a  complete  defence).  Tliere  is,  liowevcr,  considerable 
contrary  dicta  in  the  same  state,  either  inadvertent  or  intentional.  Endicott, 
J.,  in  De  Witt  v.  Pier.son,  112  Mass.  8,  10;  Morton,  .).,  in  Bartiett  v.  Farring- 
ton,  120  Mass.  284;  Gray,  J.,  in  Royce  v.  Guggenheim,  106  Id.  201.  202;  and 
in  Lawrence  r.  French,  25  Wend.  (N.  Y.)  443,  445;  and  War.ren  v.  Wagner,  75 
Ala.  188,204,  it  was  held  tliat  the  lessor  might  recover  a  quantum  meruit,  or 
tiiat  the  rent  should  be  apiiortioned. 

032 


Ch.  X.  S.  C]  APPORTIONMENT   OF   RENT.  *402 

fee,  and  lands  of  which  he  was  tenant  for  life  with  power  of 
leasing ;  and  the  lease  was  void  as  to  the  latter  lands  for  want 
of  conformity  to  the  power ;  the  court  held,  that  though  the 
lease  as  to  lands  comprised  in  the  power  was  void,  the  rent 
might  be  apportioned  for  the  remainder  (Z).  Similarly,  where 
a  lessor  professes  to  grant  an  exclusive  right  of  sporting, 
and  it  turns  out  that  he  has  no  such  privilege,  an  appor- 
tionment of  rent  will  be  made  on  that  account  (w). 

In  Neal  v.  Mackenzie,  a  lessee  of  100  acres  of  land  accepted 
the  lease  {which  was  not  under  seal}  and  entered  upon  tlie 
land;  upon  his  entry  he  found  eight  acres  in  the  possession 
of  a  person  entitled  under  a  prior  lease  from  the  lessor,  and 
that  person  kept  possession  of  the  eight  acres  until  half-a- 
year's  rent  became  due,  the  lessee  continuing  in  possession 
of  the  remainder ;  the  prior  lease  was  for  a  term  extending 
beyond  the  duration  of  the  latter  lease  :  it  was  held,  that  the 
latter  demise  was  wholly  void  as  to  the  eight  acres,  and  that 
the  rent  was  not  apportionable,  the  impediment  to  the  lessee 
taking  possession  not  being  analogous  to  an  evic- 
tion by  title  paramount  (m).  But  where  *  the  second  [*402] 
demise  was  under  seal,  it  was  held  to  operate  as  a 
grant  of  the  reversion  as  to  the  part  previously  demised  (o). 
Where  the  tenant  cannot  obtain  possession  of  all  the  premi- 
ses demised,  an  action  of  covenant  by  the  lessor  against  the 
lessee  for  the  rent  cannot  be  maintained,  as  in  such  action 
the  rent  cannot  be  apportioned  (^). 

Where  realty  and  personalty  are  let  together.  —  Where  lands 
and  goods  are  let  at  an  entire  rent,  and  the  tenant  is  evicted 
from  the  lands,  no  apportionment  can  be  made  for  the  goods 
as  the  rent  is  held  to  issue  from  the  land  alone  (^q}.  Al- 
though the  rent  of  furnished  lodgings  issues  out  of  the  realty 
only  (r)  :  yet  where   the  mortgagor  of  a  house  let  it  fur- 

(/)  Doe  r?.  Vaughan  ?'.  Meylor,  2  M.  but  see  Eco.  Commrs.  of  Ireland  r. 

&  S.  27G.  O'Connor,  supra. 

(in)  Tomlinson  v.  Day,  2  Brod.  &  (q)  Ernot  v.  Cole,  Dyer,  212  b,  in 

B.  080.  marg.;   Colliiie  v.  Harding,  Cro.  Eliz. 

(w)  Neale  v.  Mackenzie  (in  error),  606  ;    13    Co.    R.    57  ;    Moor,    544  ; 

1  M.  &  W.  747.  Cadogan  v.  Kennett,  Cowp.  432  ;  Gilb. 

(o)  Ecc.    Commrs.    of    Ireland    r.  Rents,  175. 
O'Connor,  9  Ir.  Com.  L.  R.  242.  (r)  Newman  v.  Anderton,  2  Bos.  & 

(p)  Holgate  V.  Kay,  1  C.  &  K.  341,  P.  New  R.  224. 

633 


*403  RENT.  [Ch.  X.  S,  6. 

nished,  and  the  tenant,  after  notice,  paid  the  whole  rent  to 
the  mortgagee,  it  was  held,  that  the  mortgagor  might  still 
recover  for  the  use  of  the  furniture  (s).  Where  A.  demised 
to  B.  certain  mines  for  thirty  years,  with  licence  to  use  an 
adjoining  railway  in  common  with  A.,  and  during  the  term 
A.  prevented  B.  from  using  the  railway,  it  was  held,  that 
this  created  no  suspension  of  the  rent,  because  the  rent 
issued  out  of  the  thing  demised,  i.e.^  the  mines  and  minerals, 
and  not  out  of  the  easement  to  use  the  railway  (t). 

"Where  land  is  lost  by  overflowing  of  sea.  —  The  loss  of  land 
to  the  lessee  by  the  overflowing  of  the  sea  appears  to  be 
another  case  in  which  the  tenant  may  claim  apportionment : 
but  the  loss  must  be  total  pro  tanto,  for  if  there  be  merely  a 
partial  irruption  of  water,  the  exclusive  right  of  fishing, 
which  the  lessee  would  thereupon  have,  Avould  be  such  a 
perception  of  the  profits  of  the  land  as  to  annul  his  claim  («<). 

Apportionment  under  Lands  Clauses  Act.  —  Where  part  of 
land  on  lease  is  taken  for  public  purposes  under  the  powers 
of  the  Lands  Clauses  Consolidation  Act,  1845  (8  Vict.  c.  18), 
the  119th  section  of  that  act  provides  that  "  if  any  lands 
shall  be  comprised  in  a  lease  for  a  term  of  years  unexpired, 
part  only  of  which  lands  shall  be  required  for  the  purposes 
of  the  special  act,  the  rent  payable  in  respect  of  the  lands 
comprised  in  such  lease  shall  be  apportioned  between  the 
lands  so  required  and  the  residue  of  such  lands,  and  such 
apportionment  may  be  settled  by  agreement  between  the  les- 
sor and  lessee  of  such  lands  on  the  one  part,  and  the  pro- 
moters of  the  undertaking  on  the  other  part ;  and  if  such 
apportionment  be  not  so  settled  by  agreement  between  the 
parties,  such  apportionment  shall  be  settled  b}''  two  justices ; 
and  after  such  apportionment  the  lessee  shall,  as  to 
[*403]  all  future  accruing  rent,  be  liable  only  as  to  so  *  much 
of  the  rent  as  shall  be  so  apportioned  in  respect  of 
the  lands  not  required  for  the  purposes  of  the  special  acts ; 
and,  as  to  the  lands  not  so  required^  and  as  against  the  lessee, 
tlie  lessor  sliall  have  all  the  same  rights  and  remedies  for  the 

(s)  Salmon  v.  Matthews,  8  M.  &  W.  (0  Williams  v.  liny  ward,  1  E.  &  E. 

827.  1040;  28  L.  J.,  Q.  W.'MA. 

(ji)  1  Roll.  Abr.  2;3(;,  1.  40. 

634 


Ch.  X.  S.  6.]  APPORTIONMENT   OF   RENT.  *403 

recovery  of  such  portion  of  rent,  as  previously  to  such  appor- 
tionment he  had  for  the  recovery  of  the  whole  rent  reserved 
by  such  lease  ;  and  all  the  covenants,  conditions  and  agree- 
ments of  such  lease,  except  as  to  the  amount  of  rent  to  be 
paid,  shall  remain  in  force  with  regard  to  that  part  of  the 
land  which  shall  not  be  required  for  the  purposes  of  the 
special  act,  in  the  same  manner  as  they  would  have  done  in 
case  such  part  only  of  the  land  had  been  included  in  the 
lease. 

Apportionment  under  other  statutes.  —  Where  part  only  of 
lands  comprised  in  a  lease  for  an  unexpired  term  is  conveyed, 
or  agreed  to  be  conveyed,  for  sites  for  schools  for  the  educa- 
tion of  the  poor  under  the  4  &  5  Vict.  c.  38,  the  rent  and  the 
fine  upon  renewal  may,  by  12  &  13  Vict.  c.  49,  s.  1,  be  appor- 
tioned between  the  parties  interested.  By  the  17  &  18  Vict. 
c.  32,  where  parts  of  lands  in  lease  are  taken  for  the  purposes 
of  the  Church  Building  Acts,  rents  and  fines  on  leases  and 
renewals  may  be  apportioned.  Under  the  17  &  18  Vict.  c. 
97,  for  amending  and  extending  the  acts  for  the  inclosure, 
exchange  and  improvement  of  land,  rents  and  other  certain 
payments  may  be  apportioned.  By  17  &  18  Vict.  c.  116,  to 
facilitate  the  management  and  improvement  of  episcopal  and 
capitular  estates  in  England,  on  the  sale  or  exchange  of  part 
of  lands  comprised  in  any  lease  or  copy  of  court  roll,  the 
rent  must  be  apportioned. 

(b)  Apportionment  in  respect  of  Time. 

At  common  law  rent  could  not  be  apportioned  in  respect 
of  time,  and  therefore  when  S,  tenant  for  life  granted  a  lease 
for  years,  and  died  on  any  day  not  being  rent-day,  the  whole 
rent  from  the  last  rent-day  became  lost,  and  the  lessee 
retained  the  land  without  paying  anything  for  it  until  the 
next  rent-day  (x').  This  injustice  has  been  remedied  by  a 
series  of  statutes   culminating  in  the  Apportionment  Act, 

(x)  Clun's   case,    10   Rep.    127   b;  the  preamble  to  11  Geo.  2,  c.  19,  s.  15, 

and    see   id.  Tudor's    Real   Property  it  seems  that  although  the  executor 

Cases,  at  p.  249,  where  the  whole  law  of  the  tenant  for  life  could  recover 

of  apportionment  before  the  Act  of  nothing,  the  reversioner  could  recover 

1870   is   learnedly   discussed.     From  in  respect  of  use  and  occupation. 

635 


*404  RENT.  [Ch.  X.  S.  6. 

1870,  and  as  that  act  does  not  repeal  the  preceding  statutes, 
it  will  be  well  to  consider  their  effect  shortly  before  setting 
out  at  length  the  provisions  of  the  act  which  practically 
supersedes  them. 

The  first  statute,  11  Geo.  2,  c.  19,  s.  15,  enacted  that  where 
any  tenant  for  life  should  die  before  or  on  the  day  on  which 
any  rent  was  payable  upon  any  demise,  which  deter- 
[*404]  mined  on  the  death  of  such  tenant  *for  life,  his  execu- 
tors or  administrators  might,  in  an  action  on  the 
case,  recover  from  the  subtenant,  "  if  such  tenant  for  life  die 
on  the  day  on  which  the  same  was  made  payable,  the  whole, 
or  if  before  such  day,  then  a  proportion  of  such  rent,  accord- 
ing to  the  time  such  tenant  for  life  lived,  of  the  last  year  or 
quarter  of  a  year,  or  other  time  in  which  the  said  rent  was 
growing  due,  making  all  just  allowances,  or  a  proportional 
part  thereof  respectively."  It  was  held,  under  this  statute, 
that  no  apportionment  of  rent  took  place  as  between  the 
heir  and  personal  representative  of  a  tenant  in  fee  (^).  The 
courts,  however,  consider  it  as  a  beneficial  statute,  and  put 
a  liberal  construction  upon  it,  holding,  for  instance,  that 
the  representatives  of  a  tenant  in  tail,  who  had  demised  the 
entailed  estate  by  a  lease  which  was  void  against  the  remain- 
derman, wer§  entitled  to  ari  apportionment  of  the  rent,  even 
when  the  entire  amount  had  been  previously  paid  to  the 
remainderman  (z). 

By  4  &  5  Will.  4,  c.  22,  s.  1,  rents  payable  on  any  demise 
which  determined  on  the  death  of  the  person  making  the 
same  (although  such  person  was  not  strictly  tenant  for  life 
thereof),  or  on  the  death  of  the  life  or  lives  for  which  sucli 
person  was  entitled  to  such  hereditaments,  were  brought 
within  the  operation  of  11  (leo.  2,  c.  19,  s.  15. 

By  sect.  2  of  the  same  act,  it  was  enacted  that  all  rents- 
service  reserved  on  any  lease  by  a  tenant  in  fee  or  for  any 
life  interest,  or  by  any  lease  (a)  granted  under  any  power, 

(;/)  Re  CIulow,  3  Kay  &  J.  089;  20  ?>M,  n.  ;  Ex  parte  Smyth,  1   Swnnst. 

L.  .J.  Ch.  513.  337  ;  Vtrnon  v.  Vernon,  2  Bro.  C.  C. 

(r)  Whitfiild  V.  Pindar,  C.  V.  1781,  050;   Hawkins  v.  Kelly,  8  Ves.  308; 

cited  8  Ves.  311.  See  also  Symons  Ansley  ?•.  Wadswortli,  2  "V.  &  B.  331. 
I).  Symons,  Madd.  &  (Jeld.  207  ;  Chirk-  («)  Granted    after    the  passing  of 

son  V.  Earl  of  Scarhoroiigh,  1  Swanst.  the  act,  i.e.  10  June,  1834. 

G3G 


Cii.  X.  S.6.]  APPORTIONMENT   OF   RENT.  *405 

and  all  rents-charge  and  other  rents,  and  all  other  payments 
of  every  description,  in  the  United  Kingdom  coming  due  at 
fixed  periods  under  any  instrument  executed  after  the  pass- 
ing of  the  act,  or  (being  a  will)  coming  into  operation  after 
the  passing  of  the  act,  should  be  apportioned  so  that  on  the 
death  of  any  person  interested  in  any  such  rents,  &c.,  or 
on  the  determination  by  any  other  means  whatsoever  of  the 
interest  of  any  such  person  he,  or  his  executors,  administra- 
tors or  assigns,  should  be  entitled  to  a  proportion  of  such 
rents,  &c.,  according  to  the  time  which  should  have  elapsed 
from  the  commencement  or  last  period  of  payment  thereof 
respectively,  including  the  day  of  the  death  of  such  person, 
or  of  the  determination  of  his  interest ;  and  that  every  such 
person,  his  executors,  &c.,  should  have  the  same  remedies 
at  law  and  in  equity  for  recovering  the  apportioned  parts  of 
the  said  rents,  &c.,  when  the  entire  portion  shall  become  due, 
as  he  would  have  had  for  recovering  the  entire  rents,  &c. 

It  was  held  that  this  act  applied  to  rents  and  royal- 
ties payable  *  periodically  and  reserved  by  leases  [*405] 
granted  after  the  passing  of  the  act,  in  pursuance  of 
a  power  created  before  or  since  the  act  (5)  ;  but  not  to  rents 
reserved  under  oral  demises  (e) ;  nor  as  between  the  heir- 
at-law  and  personal  representatives  of  a  tenant  in  fee  (t?)  ; 
nor  as  between  a  mortgagee  tenant  for  life,  who  had  not 
entered,  and  remaindermen,  so  as  to  give  the  mortgagee  a 
right  to  rents  which  he  would  not  have  had  until  entry  if 
the  tenant  for  life  had  lived  (e),  and  it  was  said  not  to  apply 
where  the  party  entitled  to  the  rent  himself  determined  the 
lease  during  a  current  quarter  (/).  But  it  was  held  to 
apply  where  a  lessee  of  mines,  having  power  to  determine 
the  demise  by  a  six  months'  notice  expiring  at  any  time, 
gave  such  notice  to  the  lessor  ((/). 

(6)  Plummer  i-.  Whiteley,  1  Johns.  {d)  Re  Roger's  Trusts,  30  L.  J.,  Ch. 

585;   29   L.  J.,  Ch.   247;   Knight   i'.  153. 

Broughton,  12  Beav.  312  ;  Wardroper  (e)  Paget  v.  Marquis  of  Anglesea, 

V.  Cutfield,  33  L.  J.,  Ch.  G05 ;  Llewel-  L.  R.,  17  Eq.  283;  43  L.  J.,  Ch.  437. 
lyn  V.  Rous,  L.  R.,2  Eq.27;  35  Beav.  (/")  Oldershaw  v.  Holt,  12  A.  &  E. 

591.  590 ;  4  P.  &  D.  307. 

(c)  Mills  V.  Trumper,  L.  R.,  4  Ch.  {q)  Bridges  v.  Potts,  17  C.  B.,N.  S. 

320.  314  ;  33  L.  J.,  C.  P.  338. 

637 


*406  KENT.  [Ch.  X.  S.  6. 

Apportionment  Act,  1870.  —  The  law  of  apportionment  in 
respect  of  time  has  been  extended  and  simplified  in  recent 
times  by  the  Apportionment  Act,  1870  (33  &  34  Vict.  c.  35), 
which  is  retrospective  (A). 

All  rents  accrue  from  day  to  day. — By  this  act,  which 
recites  that  rents  are  not  at  common  law  apportionable,  "and 
for  remedy  of  some  of  the  inconveniences  divers  statutes 
have  been  passed"  (being  11  Geo.  2,  c.  19,  4  &  5  Will.  4,  c. 
22,  6  &  7  Will.  4,  0.  71,  14  &  15  Vict.  c.  25,  and  23  &  24 
Vict.  c.  154),  and  that  "it  is  expedient  to  make  provision 
for  the  remedy  of  all  such  mischiefs  and  inconveniences," 
it  is  enacted  (sect.  1)  that  "all  rents  (i),  annuities,  divi- 
dends, and  other  periodical  payments  in  the  nature  of  income 
(whether  reserved  or  made  payable  under  an  instrument  in 
writing  or  otherwise)  shall,  like  interest  on  money  lent,  be 
considered  as  accruing  from  day  to  day,  and  shall  be  appor- 
tionable in  respect  of  time  accordingly."  ^ 

Apportioned  part  payable  -when  whole  due.  —  By  sect.  2, 
"  the  apportioned  part  of  any  such  rent,"  &c.,  "  shall  be  pay- 
able or  recoverable  in  the  case  of  a  continuing  rent,"  &c., 
"when  the  entire  portion  of  which  such  apportioned  part 
shall  form  part  shall  become  due  and  paj-able,  and  not  before  ; 
and  in  the  case  of  a  rent,"  &c.,  "  determined  by  re-entry, 
death,  or  otherwise,  when  the  next  entire  portion  of  the 
same  would  have  been  payable  if  the  same  had  not  been  so 
determined,  and  not  before." 

Remedies  for  recovering  apportioned  part.  —  By  sect.  4,  "all 
persons  and  their  respective  heirs,  executors,  administrators 
and  assigns,  and  also  the  executors,  administrators  and 
assigns  respectively  of  persons  whose  interests  determine 
with  their  own  deaths,  shall  have  such  or  the  same 
[*406]  remedies  at  law  and  *  in  equity  for  recovering  sueh 
apportioned  parts  as  aforesaid  when  payable  (allowing 

(h)  Capron  v.  Capron,  L.  R.,  17  Eq.  and  rent-seek,  and  also  tithes  and  all 
288  ;  and  see  note  (p),post.  periodical  payments  or  renderinfjs  in 

(/)  By  sect.  5  tiie  word  "rents"  lieu  of  or  in  tiie  nature  of  rent  or 
includes    "  rent-service,   rent-charge,       tithe." 

'  In  Ontario,  rents  are  apportionable  in  respect  of  time  as  if  accruing  from 
day  to  day.  Kev.  Sts.  Ch.  14;J  ss.  2-0  (Act  .".7,  Vict.  Ch.  10) ;  Houlton  v. 
Blake,  12  Ont.  .')32;  Barnes  v.  Bellamy,  Id.  542.  Also  in  many  cases  in 
Massachusetts  (Tub.  Sts.  c.  121^  and  California  (C  C.  P.  sec.  1!);5:)),  &c. 

038 


Ch.  X.  S.  G.]  APPORTIONMENT   OF   RENT.  *406 

proportionate  parts  of  all  just  allowances)  as  they  respectively 
would  have  had  for  recovering  such  entire  portions  as  afore- 
said if  entitled  thereto  respectively :  provided  (/c)  that  such 
persons  liable  to  pay  rents  reserved  out  of  or  charged  on  lands 
or  other  hereditaments,  of  any  tenure,  and  the  same  lands  or 
other  hereditaments,  shall  not  be  resorted  to  for  an}^  such 
apportioned  part  forming  part  of  an  entire  or  continuing 
rent  as  aforesaid  specifically ;  but  the  entire  or  continuing 
rent,  including  such  apportioned  part,  shall  be  recovered 
and  received  by  the  heir  or  other  person  who,  if  the  rent 
had  not  been  apportionable  under  this  act,  or  otherwise, 
would  have  been  entitled  to  such  entire  or  continuing  rent: 
and  such  apportioned  part  shall  be  recoverable  from  such 
heir  or  other  person  by  the  executors  or  other  parties  entitled 
under  this  act  to  the  same." 

By  sect.  7,  "  the  provisions  of  this  act  shall  not  extend  to 
any  case  in  which  it  is  or  shall  be  expressly  stipulated  that 
no  apportionment  shall  take  place  "  (^). 

Application  of  Apportionment  Act,  1870.  —  It  has  been  held 
that  this  act  applies  to  a  specific  devise  of  real  estate  (wz), 
and,  as  between  landlord  and  tenant^  to  rent  under  a  lease 
assigned  over  by  a  trustee  in  bankruptcy  (n) ;  and  it  is 
indeed  hard  to  see  what  is  not  included  in  its  very  compre- 
hensive terms.  It  has  been  intimated  that  the  act  is  not 
retrospective  (o),  but  the  preponderance  of  authority  (^) 
points  to  an  opposite  conclusion,  and  to  the  application  of 
the  act  to  a  will  made  before,  but  coming  into  operation 
after  it. 

As  between  landlord  and  tenant.  —  The   wide   terms   of  the 


(Jc)  This  Proviso  substantially  fol-  (o)  In  Jones  v.  Ogle,  L.  R.,  8  Ch. 

lows  the  corresponding  proviso  of  4  192 ;  42  L.  J.,  Ch.  334,  per  Lord  Sel- 

&  5  Will.  4,  c.  22,  s.  2.  borne,  C. 

(/)  The    words    "it   is"    are   new;  (/>)  Capron  ?;.  Capron,  L.  R.,  17  Eq. 

otherwise  the  section  corresponds  with  288 ;  43  L.  J.,  Ch.  677  ;  29  L.  T.  82(5 ; 

4  &  5  Will.  4,  c.  22,  s.  3.  Re  Cline's  estate,  L.  R.,  18  Eq.  213; 

(m)  Hasluck  v.  Pedley,  L.  R.,  19  30  L.  T.  249,  per  Malins,  V.-C. ;  Has- 

Eq.  271;  44  L.  J.,  Ch.  143;  23  W.  R.  luck  v.  Pedley,  L.  R.,  19  Eq.  271;  44 

155.  L.  J.,  Ch.  143;  23  W.  R.  155,  per  Jes- 

(n)  Swansea   Bank  ;;.  Thomas,  L.  sel,  M.  R. ;    Constable    r.   Constable, 

R.,  4  Ex.  D.  94;  48  L.  J.,  Ex.  344;  L.  R.,  11  Ch.  \).  C81 ;  Rosemgrave  v. 

40  L.  T.  558 ;  27  W.  R.  491.  Burke,  1  Ir.  R.  Eq.  186. 

639 


*407  RENT.  [Ch.  X.  S.  7. 

act  seem  to  allow  the  recovery  of  rent  pro  rata  in  the  ordi- 
nary case  where  rent  is  payable  at  fixed  periods,  and  the  ten- 
ancy is  determined  in  the  middle  of  a  period.  It  is  clear 
that  such  rent  is  not  recoverable  at  common  law  (^),  and  it 
was  said  not  to  be  recoverable  under  the  Act  4  &  5  WilL  4, 
0.  22,  s.  2  (r).  But  the  Act  of  1870,  in  sect.  3,  speaks  of  a 
rent  "determined  by  re-entry,"  which  seems  intended  to 
appl}^  to  a  forfeiture,  and  the  case  is  clearly  within  the  words 
of  sect.  2.     And  although  it  might  be  argued  that  it  is  not 

within  the  purview  of  the  act  generally,  this  argu- 
[*407]  ment  appears  *to  be  disposed  of  by  Swansea  Bank  v. 

Thomas  (s),  in  which  case  the  trustee  in  liquidation 
of  the  lessee,  having  assigned  over  during  a  current  quarter, 
was  held  liable  under  the  act  to  pay  to  the  lessor  a  propor- 
tionate part  of  the  quarter's  rent  up  to  the  time  of  the  assign- 
ment over ;  and  by  Re  South  Kensington  Stores  (i),  in  which 
case  the  landlord  of  a  liquidating  company,  whose  business 
was  carried  on  by  the  liquidator,  was  allowed  proof  for  part 
of  a  quarter's  rent  up  to  date  of  petition,  and  distress  for  the 
remainder. 


Sect.  7.  —  CoiitinuMice  of  Lessee  s  Liability. 

After  assigning. —  The  lessee  has  both  a  privity  of  contract 
and  of  estate  ;  and  though  he  assign,  and  thereby  destroy 
the  privity  of  estate,  the  privity  of  contract  continues,  and 
lie  is  liable,  in  an  action  of  covenant,  for  the  rent,  notwith- 
standing the  assignment  (ii)} 

After  quitting  possession.  —  A  tenant  remains  liable  for 
rent,  unless  he  deliver  up  complete  possession  of  the  prem- 
ises, or  the  landlord  accept  of  another  in  his  room  (.r).^     But 

(r/)  See  Slack  v.  Sharpe,  8  A.  &  K.  1,  p.  108  and   note;  post,   Appendix 

?.m ;  (irimniin  v.  Lepso,  8  B.  &  C.  ;324.  B.,  Sect.  12. 

(r)  Oklershavv  v.  Holt,  12  A.  &  E.  (0  L.  R-,  17  Ch.  I).  Ifil ;  44  L.  T. 

590.  471. 

(«)  L.  R.,  4  Ex.  D.  04.     Sec  a  form  (»)  Eaton  v.  Jacqnos,  2  Doug.  455; 

providing   for   payment   pro   ratci   in  Auriol  v.  Mills,  4  T.  H.  04. 

case  of  re-entry,  I)av.  I'rec.  vol.  5,  pt.  (.c)  Harding   v.  Crcliiorne,  1    Esp. 

'  Sec  (intr,  Cliap.  VII.,  sec.  5,  note,  "  ElTcct  of  assigiinicnt  of  term." 
'^  See  mite,  Ch.  VIII.,  sec.  3  (b),  note,  "  Smreiider  liy  operation  of  law." 

040 


Ch.  X.  S.  7.]       CONTINUANCE   OF   LESSEE'S   LIABILITY.  *408 

where  a  lessee  quitted,  in  the  middle  of  liis  term,  apartments 
which  he  had  taken  for  a  year,  and  the  lessor  let  them  to 
another  tenant,  it  was  held,  that  she  could  not  recover  in  an 
action  for  use  and  occupation  against  the  lessee  for  a  subse- 
quent portion  of  the  year,  during  which  the  apartments  had 
been  unoccupied  (y)  :  though  if  a  tenant  abandon  premises 
without  notice,  the  landlord  may  recover  subsequent  rent, 
notwithstanding  he  has  put  up  a  bill  in  the  window,  and 
otherwise  endeavoured  to  obtain  another  tenant  (2).  Where 
a  tenant  from  year  to  year,  at  a  rent  payable  half-j-early, 
without  giving  any  notice  to  the  landlord,  quitted  the  prem- 
ises at  the  expiration  of  the  current  year;  and  before  the 
next  half-year  expired  the  landlord  let  the  premises  to  an- 
other tenant,  who  occupied  the  same  ;  it  was  held,  that  the 
landlord  was  hot  entitled  to  recover  rent  from  the  first  ten- 
ant from  the  expiration  of  the  current  year,  when  he  quitted 
the  premises,  to  the  time  when  the  landlord  re-let  the  same 
to  the  second  tenant  («).  If  the  landlord  of  lodgings  enter 
into  and  use  the  apartments  whilst  the  tenant  is  in  posses- 
sion, he  is  deprived  of  his  right  to  rent ;  but  if  the  tenant  have 
abandoned  the  possession  during  his  tenancy,  the 
landlord's  lighting  fires  in  the  rooms,  or  even  *  using  [*408] 
the  rooms,  will  not  deprive  him  of  his  right  to 
rent  (^).  Where  the  landlord  forcibly  turned  out  a  man 
left  in  possession  by  the  tenant,  and  who  was  personally 
offensive  to  the  landlord,  it  was  left  to  the  jury  to  say 
whether  such  expulsion  was  a  mere  personal  trespass,  or 
done  for  the  purpose  of  turning  the  tenant  out  of  posses- 
sion (c).  Where,  during  a  current  quarter,  some  dispute 
arose  between  the  lessor  and  lessee  of  a  first  and  second  floor 
of  a  house  demised  for  a  year,  at  a  rent  payable  quarterly ; 
and  the  lessee  having  told  the  lessor  that  she  would  quit 
immediately,  the  latter  answered  that  she  might  go  when  she 


67;   Ibbs   v.  Eichardson,  9  A.  &   E.  (z)  Rcdpath  ?;.  Roberts,  3  Esp.  225. 

849;    and    see    Henderson    r.  Squire,  («)  Hall  r.  Burgess,  5  15.  &  C.  332. 

h.  R.,  4  Q.  B.  170 ;  and  Chap.  XX.,  (h)  Griffith   v.  Hodges,  1  C.  &   P. 

post.  419. 

(?/)  Walls  V.  Atcheson,  3  Bing.  402;  (c)  Henderson  v.  Mears,  1  F.  &  F. 

2  C.  &  P.  268.  636. 

641 


*408  RENT.  [Ch.  X.  S.  7. 

pleased ;  upon  which  the  lessee  did  quit,  and  the  lessor 
accepted  possession  of  the  apartments ;  it  Avas  held,  that  he 
could  neither  recover  the  rent  wliich  by  virtue  of  the  original 
contract  would  have  become  due  at  the  expiration  of  the 
current  quarter,  nor  rent  jjro  rata  for  the  actual  occupation 
of  the  jDremises  for  any  2>eriod  short  of  the  quarter  ((7). 

Where  premises  are  destroyed  by  fire.  —  Where  the  lessee 
covenants  to  pay  rent  at  stated  periods  (without  any  excep- 
tion in  case  of  fire),  he  is  bound  to  pay  it,  though  the  house 
be  burnt  down ;  for  the  land  remains,^  and  he  might  have 
provided  to  the  contrary  by  express  stipulation,  if  both 
parties  had  so  intended.  And  this  rule  applies,  although 
the  lessee's  covenant  to  repair  contain  an  exception  (/)  in 
case  of  fire  (/).  Where  premises  were  destroyed  by  fire 
during  a  tenancy  under  a  written  agreement,  and  rendered 
no  longer  habitable,  the  landlord  was  held  to  be  still  entitled 
to  recover  rent,  accruing  due  after  the  fire,  in  an  action  for 
use  and  occupation  (//).  So  also  a  tenant  from  year  to  year 
of  a  second  floor,  under  a  parol  agreement,  has  been  held 
liable  in  the  same  form  of  action  (A) :  and  where  the  rent 

(rf)  Grimnian  v.  Leg^e,  8  B.  &  C.  1  Ld.  Rnyin.  1477 ;  Belfour  v.  Wes- 

324.  ton,  1  T.K.  310.     And  see  Weigall 

(e)  This  exception  lias  been    held  v.    Waters,   G   T.    R.   488;    Hare    i'. 

not  "  usual."     Sliarp  r.  Milligan,  23  Groves,  3  Anst.  687,  and   the   cases 

Beav.  419.     As  to    the    construction  infra. 

of  the  exception  in  relation  to  rent,  (y)  Baker  v.  lloltzappfol,  4  Taunt, 

see  Bennet  v.  Ireland,  E.  B.  &  E.  326 ;"  45. 

28  L.  J.,  Q.  B.  48.  (/()  Izon  i-.  Gorton,  5    Bing.  N.  C. 

(/)  Monk  f.  Cooper,  2  Stra.  7G3 ;  501. 

1  Destruction  of  demised  buildings  by  fire,  Gibson  v.  Perry,  29  Mo. 

245;  Gates  v.  (ireen,  4  Vm^c  (N.  Y.)  355,  ;!58  {per  Clinn.  Walworth)  ;  IIa\- 
lett  I'.  Wylie,  3  Johns.  (N.  Y.)  44;  Magaw  v.  Lambert,  3  ]>a.  St.  444;  Hazlett 
r.  Powell,  30  Pa.  St.  293,  298;  Fisher  v.  Milliken,  8  Pa.  St.  Ill,  121  {per 
Gibson,  C.  J.)  ;  Fowler  v.  Bott,  6  Mass.  03 ;  Kinfrsbury  v.  Westfall,  61  N.  Y. 
350,  or  other  cause,  Davis'  Adm'r  v.  Smith,  15  Mo.  464,  is  (at  common  law) 
no  defence  to  a  suit  for  rent,  except  (as  is  held  in  America)  in  case  of  a 
demise  of  part  of  a  buildinji;  (as  a  room,  chamber,  basement,  &c.).  In  latter 
case  rent  is  discharged  because,  there  bein};  no  realty,  there  is  a  total  destruc- 
tion of  the  demised  tiiin<,'.  See  otite,  Ch.  VIII.,  sec.  1,  note,  "Termination  by 
total  destruction." 

fn  Ohio  it  is  j)rovid('d  1)y  statute  that  if  a  buihliiij^  is  burned  or  injured, 
without  fault  of  tenant,  .';o  as  to  be  unlit  for  oc(;up;uK'y,  the  rent  shall  cease 
find  the  lessee  must  surrernler  the  premises.  Hev.  Sts.  (1880)  sec.  413. 
Louisiana  and  QurUc  also  have  special  provisions  for  such  cases. 

G42 


Ch.  X.  S.  7.]         CONTINUANCE   OF   LESSEE'S    LIABILITY.  *409 

for  similar  lodgings  was  payable  quarterly,  lie  was  held 
liable  for  rent  up  to  the  time  of  the  lire  at  least  (i).  The 
tenant  in  such  latter  case,  to  get  rid  of  his  liability,  should 
give  a  regular  notice  to  quit.  The  reason  is,  that  when  the 
law  creates  a  duty,  and  the  party  is  disabled  to  perform  it 
without  any  default  in  him,  and  he  has  no  remedy  over,  the 
law  will  excuse  him  :  but  when  the  party,  hy  his  otvn  corir 
tracts  creates  a  duty  or  charge  upon  himself  he  is  bound 
to  make  it  good,  notwithstanding  any  accident  by  inevitable 
necessity,  because  he  might  have  provided  against  it  when 
makincf  the  contract.  In  some  old  cases  the  Court  of 
Chancery  relieved  the  lessee,  and  granted  an  injunc- 
tion to  restrain  the  landlord  from  bringing  an  *  action  [*409] 
on  the  covenant  for  rent  (/c) ;  but  the  modern  prac- 
tice was  clearly  otherwise  (Oi  ^^  that  no  equitable  defence 
could  be  raised  by  virtue  of  the  Judicature  Act.  It  has 
even  been  held  that  a  tenant  who  has  covenanted  to  rebuild, 
has  no  equity  to  compel  his  landlord  to  expend  money 
received  by  the  landlord  from  an  insurance  office,  on  the 
demised  premises  being  burnt  down  (ni).  But  it  seems  that 
the  Act  14  Geo.  3,  c.  78,  s.  83,  which  requires  the  governors 
of  an  insurance  office,  "  upon  the  request  of  any  person 
interested"  (w),  to  cause  insurance  money  to  be  laid  out 
towards  rebuilding,  may  be  taken  advantage  of  by  tenants 
as  well  as  by  landlords.  It  is,  however,  always  desirable  to 
provide  for  the  case  of  fire  by  special  covenants,  and  this  is 
frequently  done  (o). 

After  eviction  by  lessor,  rent  is  suspended.  —  By  an  entry 
of  the  lessor,  or  any  one  claiming  through  him,  into  any 
part  of  the  demised  premises  to  take  possession  thereof,  the 
rent  is  suspended  (^)  :  ^  and  therefore,  as  to  subsequently  (c[) 

(i)  Packer  v.  Gibbons,  1  Q.  B.  421.  followed   with   approval   in   Lofft  v. 

(k)  Brown  v.  Quilter,  Arab.  919 ;  2  Dennis,  1  E.  &  E.  474  ;  28  L.  J.,  Q.  B. 

Eden,    210;    Canulen  v.  Morton,  Id.  1G8. 

219;  citedlSVes.  118;  SteeU'.  Wright,  (v)  Post,  Chap.  XVII. 

cited  1  T.  R.  708.  (o)  Post,  Sect.  8. 

(/)  Holtzappfel    v.  Baker,  18  Ves.  {}))  Morrison  7-.  Chadwick,  7  C.  B. 

115.  260;  G  1).  &  L.  507. 

(m)  Leeds  v.  Cheetham,  1  Sim.  140 ;  (7)  Boodle  v.  Cambell,  7  M.  &  G.  386. 

^  See  ante,  sec.  6,  note,  "  Eviction  of  lessee." 

643 


*410  RENT.  [Ch.  X.  S.  7. 

accruing  rent  the  eviction  will  be  a  bar ;  but  if  the  lessor 
enter  by  virtue  of  a  power  reserved,  or  even  a  mere  tres- 
passer, if  the  lessee  be  not  evicted,  it  will  be  no  suspension 
of  the  rent  (r).  Where  the  lessor  caused  two  messuages, 
let  separately,  which  had  been  destroyed  by  fire  during  the 
term,  to  be  rebuilt  in  such  a  manner  as  to  destroy  their 
identity ;  it  was  held,  that  such  alterations  in  the  subject- 
matter  of  the  demises  amounted  to  evictions,  and  that  the 
tenants  were  not  liable  for  subsequent  rent  (s).  If  a  lessor 
serve  a  writ  in  ejectment  under  a  clause  that  for  any  breach 
of  covenant  the  lease  shall  determine  and  be  void,  he  can- 
not maintain  an  action  for  rent  subsequently  accruing  or 
for  breaches  of  covenant  (?).  If  a  lessor  has  no  title,  and 
the  lessee  is  evicted  b}^  title  paramount,  he  may  plead  that 
as  a  defence  to  an  action  by  the  lessor  for  subsequent 
rent  (^u).  If  a  party  having  a  paramount  legal  right  to 
evict  a  tenant,  goes  to  him  and  claims  his  right,  on  which 
the  tenant  attorns  to  him,  it  seems  to  be  equivalent  to  an 
expulsion  (a;).  Where  lands  were  demised  by  parol,  and  the 
lessee  only  entered  on  and  had  possession  of  part,  in  conse- 
quence of  the  lessor  having  previously  demised  the  residue  to 
a  third  person ;  it  was  held,  that  the  want  of  possession  was 

equivalent  to  an  eviction  by  the  tortious  act  of  the 
[*410]  lessor,  and  was  not  in  the  nature  of  an  eviction  *  by 

an  elder  title,  and  that  therefore  the  rent  was  not 
apportionable,  and  could  not  be  distrained  for  (//).  But 
where  the  demise  is  by  indenture  it  will  operate  as  a  grant 
of  the  reversion  as  to  such  of  the  lands  as  are  in  the  posses- 
sion of  a  previous  tenant,  and  a  demise  of  tlie  residue  of  the 
lands  (z). 

(r)  Bull.  N.  p.  105,  177;  Hunt  v.  15  M.  &  W.  571  ;  Emery  v.  Barnott, 

Cope,  Cowp.  24:};  Newton  v.  Allin,  1  4  C.  B.,  N.  S.  423;  but  see  Delaney 

Q.  B.  518.  '.'.  Fox,  2  C.  B.,  N.  S.  7()8. 

(s)  Upton   V.  Towncnd  and  Upton  (.'/)  Ni^^le  '•.  Mackenzie  (in  error), 

V.  Greenlees,  17  C.  B.  HO.  1   M-  &  W.  747;  Watson  i-.  Waud,  8 

CO  Jones  V.  Carter,  15  M.  &  W.  718.  Excli.  .1:55. 

C»/)  Cuthhertson  v.  Irvinp,  4  II.  &  (')  'i'^ccl.    Comnirs.  of    Ireland    v. 

N.  742;  6  Id.  135;  28  T>.  J.,  Ex.  306.  O'Connor,  9  Ir.  Com.  L.   U.  242. 

(x)  Mayor,  &c.,  of  Poole  v.  Whitt, 

644 


Ch.  X.  S.  8.]  STIPULATION   FOR   ABATEMENT.  *410 

Eviction  by  mere  trespass  does  not  suspend  rent.  —  It  is 
essentially  necessary,  in  order  to  suspension  of  rent,  that 
such  eviction  be  not  the  effect  of  a  mere  trespass,  for  in  such 
case  the  lessee  is  not  excused  from  the  payment  of  his  rent: 
thus,  where  in  an  action  of  debt  for  rent  the  lessee  pleaded, 
that  Prince  Rupert,  an  alien  born,  Avith  an  hostile  army,  had 
entered  upon  the  lessee,  and  expelled  him  out  of  possession, 
the  Court  of  King's  Bench  held,  that  he  was  still  bound  to 
pay  his  rent  (a). 


Sect.  8.  —  Stipulation  for  Abatement  of  Ment,  in  case  of 

Fire,  ^c. 

Where  there  was  a  proviso  that  in  case  the  demised  prem- 
ises or  any  part  thereof  "  should  be  destroyed  or  damaged  by 
fire,  flood,  storm,  tempest,  or  other  inevitable  accident,"  the 
rent  should  cease  or  abate,  &c.,  it  was  held  that  an  exclusion 
of  the  tenant  from  the  premises  by  the  landlord  executing 
repairs  in  pursuance  of  a  covenant  in  the  lease  did  not  fall 
within  the  proviso  (li). 

(a)  Paradine   v.   Jane,  Aleyn,  26;  (b)  Saner  v.  Bilton,  7  Ch.  D.  815; 

Style,  47 ;   and   see   Tasker  v.  Bull-       47  L.  J.,  Ch.  267 ;  38  L.  T.  281 ;  26 
man,  3  Exch.  351.  W.  R.  394. 

645 


[*411] 


*  CHAPTER   XL 

DISTRESS   FOR   RENT. 


SECT.  PAGE 

1.  Definition  of  Distress  .     .     .  441 

To  what  Rents  applicable  .  412 

2.  Conditions  precedent  to  Dis- 

tress      414 

Tender  of  Rent    ....  414 
Actual    Demise    at    fixed 

Rent 417 

3.  Restraining  Distress   by  In- 

junction    420 

4.  Who  may  distrain    ....  421 

(a)  Reversioners      ....  421 

(b)  Persons  not  having  the 
Reversion 426 

(c)  Tenants  pur  autre  vie    .  426 

(d)  Executors  and  Adminis- 

trators    427 

(e)  Husbands 427 

(f)  Corporations      ....  428 

(g)  Persons   having   special 

Powers 428 

(h)  Receivers  and  Agents     .  429 

(i)   Sequestrators     ....  430 

5.  Distress    on    agricultural    or 

pastoral    holding,   or  mar- 
ket garden 430 

6.  Bankrupt  Tenant     ....  432 

7.  Company  in  Liquidation  .     .  432 

8.  Things    Distrainable     .     .     .  4-34 

(a)  Rules  and  Exemptions    .  434 

(b)  Corn  and  Crops     .     .     .  4-36 

9.  Exemptions  from  Distress     .  438 

(a)  Fixtures,  &c 438 

(b)  Animals  Fera)  Natura)    .  439 

(c)  Goods  sent  to  Trader     .  440 

(d)  Things  in  actual  Use     .  442 


SECT.  PAGE 

9.  —  (^Continued) 

(e)  Things    in    Custody    of 

Law 442 

(f)  Tlie  Goods  of  Lodgers    .  445 

(g)  Railway  Rolling  Stock  .  447 
(h)   Hired     Machinery     and 

Breeding    Stock      .     .  448 

(i)  Beasts  and  Sheep  .     .     .  449 

(j)  Tools  of  Trade  ....  451 

(k)  Agisted  Stock  ....  452 

10.  Proceedings  in  Distress    .     .  452 

(a)  When  to  be  made  .     .     .  452 

(b)  What    arrears    recover- 

able    454 

Agricultural        Hold- 
ings      454 

(c)  Where  to  be  made     .     .  456 

(d)  Distress  Warrant  .     .     .  458 

(e)  Fraudulent  Removal .     .  467 

(f)  How  impounded     .     .     .  473 

(g)  Notice  of  Distress      .     .  477 
(h)  Appraisement  and  Sale  .  479 
(i)   Expenses  .     .     .  ' .     .     .  482 
(j)  Surplus  Proceeds  and  un- 
sold Goods     ....  485 

11.  Second  Distress 485 

12.  Rescue  and  Pound  Breach    .  487 

IVote    on    Distress   Damage 

Feasant 489 

13.  Satisfaction    of    one   Year's 

Arrears  by  Execution  Cred- 
itor         490 

(a)  High  Court 490 

(b)  County  Court    ....  496 

(c)  Admiralty  Process     .     .  497 


Sect.  1.  —  Definition  of  Distress. 

A  DLSTRESS  is  one  of  the  most  ancient  and  effectual  reme- 
dies for  the  recovery  of  rent.^     It  is  the  taking,  without  legal 

'  The  law  of  distress  in  America. —  (a)  Where  existing.  —  The  law  of 
distress  with  greater  or  less  modifications  exists  in  Nova  Scotia  (regulated  by 

646 


Cn.  XI.  S.I.]  DEFINITION    OF   DISTRESS.  *412 

process,  cattle  or  goods  as  a  pledge  to  compel  the  satisfaction 
of  a  demand,  the  performance  of  a  duty,  or  the  redress  of  an 
injury.  The  act  of  taking,  the  thing  taken,  and  the  remedy 
generally,  having  been  called  a  disticss  ;  an  inaccuracy  which 
the  older  text-writers  usually  avoided  (a). 

Originally  a  pledge.  —  The    power   of   distress   appears    to 
have  been  derived  from  the  ancient  feudal  law,  and 
to  have  been  substituted  for  a  forfeiture  of  *  the  ten-  [*412] 
ant's  estate  (^).^ 

(a)  See  Bullcn  on  the  Law  of  Dis-  wrongful  distress  are  considered  post, 
tress,  A.D.   1842.     The  remedies  for       Chap.  XII. 

(i)  Gilb.  Rent,  5,  92. 

Rev.  Sts.  chap.  125)  ;  New  Bi-unswick  (Cons.  Sts.  chap.  83)  ;  Ontario  (1  Rev. 
Sts.  chap.  148);  Quebec  (Civil  Code,  Art.  1619,  et  seq.)  ;  Manltoha ;  New 
Jersejj  (Rev.  Sts.  pp.  308,  314)  ;  Pennsi/lvuiiia  (2  I'urdon's  Dig.  pp.  1011,  1015) ; 
Ddaware  (Laws  of  Del.  chap.  120)  ;  Mar;/land  (Rev.  Code,  Art.  67,  sees.  8-23)  ; 
Virginia  (Code,  sees.  2790-2795) ;  West  Vinjinia  (Code,  chap.  93,  sees.  7-15) ; 
District  of  Columbia;  South  Carolina  (Rev.  Sts.  sees.  1823-1824)  ;  Georgia  (Code, 
sec.  4082,  et  seq.)  ;  Florida  (Dig.  chap.  137)  ;  Mississi/ipi  (Rev.  Code,  sec.  1301, 
etseq.,  in  a  modified  or  statutory  form)  ;  Louisiana  (Civil  Code,  Art.  2705-2709 ; 
Rev.  Laws,  sees.  2159-2165)  ;  Texas  (Rev.  Sts.  chap.  58,  Art.  3107-3122  b) ; 
Indiana  (at  least  it  has  been  in  existence,  Applegate  v.  Crawford,  2  Ind.  579; 
Wright  V.  Mathews,  2  Blackf.  187);  Illinois  {Rev.  Sts.  chap.  80);  Kentuckij 
(Gen.  Sts.  chap.  06). 

(i)  Where  not  existing.  —  It  has  been  abolished  by  statute  in  New  York 
(Sts.  1846,  chap.  274)  ;  Wisconsin  (Rev.  Sts.  sec.  2181,  Laws  of  1866,  p.  77)  ; 
Minnesota  (Sts.  chap.  75,  sec.  39)  ;  and  Utah  (Comp.  Laws,  chap.  8,  Art.  1203). 

It  is  obsolete  in  New  England  (Potter  v.  Hall,  3  Pick.  (Mass.)  368,  373; 
374  {per  Parker,  C.  J.)  ;   Wait  Appellant,  7  Id.  100,  105  {per  Parker,  C.  J.)  ; 

2  Taylor's  Land.  &  Ten.  sec.  558)  ;  North  Carolina  (2  Taylor  L.  &  T.  sec. 
658;  Dalgleish  v.  Grandy,  Com.  &  Nor.  (N.  C.)  22;  Deaver  v.  Rice,  4  Dcv. 
&  B.  (N.  C.)  431;  Harrison  r.  Rick,  71  N.  C.  7,  12  {per  Rodman,  J.))  ;  and 
Missouri  (Crocker  v.  Mann,  3  Mo.  472 ;  Kamerick  v.  Castleman,  23  Mo.  Aj)p. 
481). 

There  are  no  statutory  provisions  concerning  it  in  Alabama,  Tennessee, 
and  Oiiio,  2  Taylor's  Land.  &  Ten.  sec.  558,  except  as  to  the  city  of  Mobile, 
Dumes'  Adm'r  v.  McLosky,  5  Ala.  239,240  {per  Ormond,  J.,  under  Act  of 
Jan.  17,  1834),  and  special  provision  as  to  landlord's  lien  on  crop  in  Ohio,  2 
Taylor's  Land.  &  Ten.  sec.  558. 

1  American  substitutes  for  distress.  —  {<i)  Attachment  on  mesne  process. 
—  Taylor  says  that  in  "the  New  England  States  the  law  of  attachment  on 
mesne  process  has  superseded  the  law  of  distress  (2  Taylor's  Land.  &  Ten. 
sec.  558),  and  that  the  principles  of  the  common  law  doctrine  of  distress 
have  been  thereby  essentially  assumed.     See  Parker,  C.  J.,  in  Potter  !•.  Hall. 

3  Pick.  (Mass.)  368,  374,  and  Parsons,  C.  J.,  in  Bond  r.  Ward,  7  Mass.  123, 
128.  It  is  a  curious  fact  (as  pointed  out  in  Delano's  Law  of  Landlord  & 
Tenant  in  Massachusetts)  that  the  colonial  laws  gave  a  writ  of  replevin  for 

647 


*-J:12  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  1. 

History.  —  Originally  it  was  not  so  much  a  remedy  as  the 
means  of  obtaining  one ;  for  when  it  was  made,  the  chattels 
distrained  remained  only  as  a  pledge  in  the  hantls  of  the  dis- 

goods  distrained.  See  Dig.  Mass.  Laws,  1675,  and  Plm.  Col.  Laws,  1675;  see, 
also,  St.  1825,  c.  89. 

In  Wait  Appt.  7  Fic:k.  100,  105,  Parker,  C.  J.,  said,  "  We  think  there  is  no 
riglit  of  distress  in  tliis  Commonwealth;"  also  in  Potter  c.  Hall,  3  Pick.  368, 
374 :  "  Our  legislature  seems  to  have  considered  the  common  law  in  this 
respect  as  obsolete,  or  repealed  by  usage  in  tiie  several  statutes ;  they  have 
made  exempting  articles  of  small  value,  but  of  great  necessity  from  attach- 
ment." 

(6)  Landlord's  statutory  liens.  —  i\Iany  of  the  states  have  enacted  laws  giv- 
ing the  landlord  a  special  lien  upon  the  crop  of  his  lessee.  For  example : 
''Xort/i  Carolina  (Code,  sec.  1754  et  seq.;  State  v.  Crowder,  97  N.  C.  432; 
Bridgers  v.  Dill,  Id.  222;  State  v.  Wilbourne,  87  N.  C.  529);  South  Carolina 
(Whaley  r.  Jacobson,  21  S.  C.  51)  :  Georgia  (Code,  sees.  1977,  &c.;  Worrill  v. 
Barnes,  57  Ga.  404;  Davis  v.  Meyers,  41  Id.  95;  Taliaferro  r.  Pry,  Id.  622; 
Hobbs  V.  Davis,  50  Id.  213;  Johnson  v.  Emanuel,  Id.  590;  Ware  v.  Blalock, 
72  Id.  804;  Benson  v.  Gottheimer,  75  Id.  642);  Alabama  (Civil  Code,  sec. 
3056  et  seq.;  Steiuhardt  v.  Bell,  80  Ala.  208;  Robinson  v.  Leliman,  72  Id. 
401;  Lake  v.  Gaines,  75  Id.  143;  Stoelker  v.  Wooten,  80  Id.  610;  Napier  v. 
Foster,  Id.  339)  ;  Mississippi  (Rev.  Code,  ch.  50,  sec.  1301  et  seq.;  Cohn  v. 
Smith,  64  Miss.  816 ;  Roberts  r.  Sims,  Id.  597)  ;  Arkansas  (Digest  of  Statutes, 
sec.  4453  et  seq. ;  Roth  v.  Williams,  45  Ark.  447  ;  Birmingham  v.  Rogers, 
46  Id.  254)  ;  New  Mexico  (Conip,  Laws,  sec.  1537  et  seq.)  ;  Indiana  (Rev. 
Sts.  ch.  76,  sec.  5224 ;  Ry.  Co.  v.  Linard,  94  Ind.  324)  ;  Iowa  (Rev.  Code, 
sec.  2017  et  seq.;  Garner  v.  Cutting,  32  Iowa,  547;  Grant  v.  Whitewell,  9  Id. 
152;  Carpenter  i'.  Gillespie,  10  Id.  592;  Rotzler  v.  Rotzler,  40  Id.  189; 
Perry  v.  Waggoner,  68  Id.  403;  Jarchow  ?'.  Pickens,  51  Id.  381);  Illinois 
(Prettyman  v.  Unland,  77  111.  206;  Fames  v.  Mayo,  6  Bradw.  (111.)  334; 
O'llara  v.  Jones,  46  111.  288;  Mead  i'.  Thompson,  78  Id.  62;  Hunter  !•.  Whit- 
field, 89  Id.  229;  Miles  r.  James,  36  Id.  399;  Herron  ?'.  Gill,  112  Id.  247); 
Kansas  (Comp.  Laws,  Art.  3227  et  seq.)  ;  Mis.souri  (Haseltine  r.  Aushcrman, 
87  Mo.  410;  Chamberlain  v.  Heard,  22  Mo.  App.  416);  Nebraska  (Comp. 
Sts.  sec.  1073).  The  natures  of  these  liens  \ary  considerably.  Generally 
they  are  confined  to  the  crop,  and  are  paramount  to  all  other  liens. 

In  Iowa  the  lien  extends  not  only  to  crops  but  to  other  personal  property 
of  tenant  which  has  been  used  upon  the  premises  during  the  term  ;  the  lien 
continues  (during  the  tenancy)  for  one  year  after  each  year's  or  shorter 
period's  rent  becomes  due,  but  does  not  continue  more  than  six  months  after 
the  expiration  of  tlie  term,  and  special  statutory  provisions  are  made  for  its 
enforcement. 

Texas. — There  is  a  special  statutory  lien  in  Texas  (Rev.  Sts.  sec.  3122,  a) 
upon  all  the  property  of  the  tenant  in  residence,  storehouse,  or  other  building 
for  all  rents  due  or  to  become  due,  and  extending  in  time  one  month  after 
tenant  cea.ses  to  occupy.  See  Couts  v.  Sjiivey,  iJG  Tex.  267;  H.  R.  E.  B.  B. 
Ass.  V.  Cocliran,  60  Tex.  (»20. 

In  Marifland  it  is  provided  (Rev.  Code,  Art.  67,  sec.  13)  that  in  case  a 
share  of  crops  is  reserved  as  rent,  the  landlord  sliall  have  a  lien  not  to  be 
divested  by  bankruptcy,  insolvency,  voluntary  sale,  or  process  of  law;  and 
in   Florida  (Dig.  ch.  137)  he  lias  a  suiicrior  lien  upon  agricultural  products, 

648 


Cii.  XI.  S.  1.]  DEFINITION    OF   DISTRESS.  *412 

ttainer,  but  could  not  be  sold  (c) ;  and,  as  Blackstone 
observes,  "  although  such  a  distress  put  the  owner  to  in- 
convenience, and  was  therefore  a  punishment  to  him,  yet  if 
he  continued  obstinate,  and  would  make  no  satisfaction,  it 
was  no  remedy  at  all  to  the  distrahier  "  (fZ).  Tiiis  power, 
however,  became  the  means  of  great  oppression  in  the  hands 
of  the  barons  («),  and  continual  enactments  were  passed  up 
to  1  &  2  Philip  and  Mary,  c.  12,  for  the  protection  of  ten- 
ants (/)  ;  but  the  current  of  legislation  afterwards  took  a 
turn,  and  was  for  a  very  long  time  wholly  for  the  benefit  of 
landlords  rather  than  of  tenants  (^)  ;  a  step  in  the  favour  of 
tenants,  however,  was  taken,  in  1871,  by  the  act  which  pro- 
tects the  goods  of  lodgers  from  distress,  another  step,  in 
1872,  by  the  act  which  protects  railway  rolling  stock,  and  a 
still  further  and  very  considerable  step  —  in  relation  to  agri- 
cultural holdings  only  —  by  the  Agricultural  HolcUngs  Act, 
1883  (p.  430,  post). 

To  what  rents  incident.  —  Distress  is  incident  of  common 
right  to  every  rent-service,^  properly  so  called  (/i).      It  is  also 

(c)  Preamble  to  2  W.  &  M.,  sess.  1,  Westminster  II.),  cc.  36,  37 ;  1  &  2 
c.  5.  Ph.  &  M.  c.  12. 

(d)  3  Blac.  Com.  14.  (g)  17  Car.  2,  c.  7  ;  2  W.  &  M.,  sess. 
{e)  Barrington  on  Ancient  Statutes,       1,  c.  5  ;  8  Ann.  c.  14  ;  4  Geo.  2,  c.  28 ; 

14.  llGeo.  2,  c.  19;  56Geo.  3,c.  50;  3  & 

(/)   51   Hen.  3,  c.   4;   52  Hen.  3  4  Will.  4,  c.  42,  s.  38;  14  &  15  Vict. 

(Statute  of  Marlebridge),cc.  1,2,4, 15,  c.  25;   Bankruptcy  Act,   1869,   sect. 

21 ;  3  Edvv.  1  (Stat,  of  Westminster),  M,ante,  282. 
cc.   16,   17,  23;  13  Edw.  1  (Stat,  of  (h)  Aiite,S76. 

even  to  those  of  older  date,  but  upon  other  property  of  lessee,  sub-lessee,  or 
assigns,  it  is  only  superior  to  subsequent  liens. 

In  Kentuckif  (Gen.  Sts.  ch.  QQ,  sec.  12)  the  landlord  has  a  preferential  lien 
upon  produce,  fixtures,  household  furniture,  and  other  personal  property  of 
tenant  or  undertenant;  but  as  it  is  lost  by  removal  (without  fraudulent 
intent)  unless  asserted  within  fifteen  days  thereafter,  it  much  resembles  the 
landlord's  ordinary  lien  in  cases  of  distress,  though  in  some  respects  superior 
to  it. 

In  some  of  the  above  states  the  law  of  distress  also  exists.  Sometimes 
the  lien  is  enforcible  by  distress  warrant  (Ga.  Code,  sec.  1977 ;  Worrill  v. 
Barnes,  57  Ga.  404)  and  sometimes  by  attachment  (Comp.  Laws  of  Ivans. 
Art.  .3231;  Rev.  Code  of  Iowa,  sec.  2018;  Rev.  Code  of  Miss.  sec.  1301; 
Ciiambi'ihiin  r.  Heard,  22  Mo.  App.  416  ;  Civil  Code,  Ala.  sec.  3061). 

1  Definitions.  —  For  rent-service,  rent-seek,  rents  of  assize,  chief-rents, 
rent-eliarge,  and  fee-farm  rent,  see  ante,  ch.  10,  sec.  1,  also  2  Bl.  Cora.  sec.  42, 
and  3  Kent's  Com.  sees.  460,  461. 

649 


*413  DISTRESS   FOR   RENT.  [Ch.  XL  S.  1. 

necessarily  incident,  by  special  reservation,  to  every  7-ent- 
charge  (Ji).  But  it  was  not  incident  to  rent-seek  Qi)  until 
the  4  Geo.  2,  c.  28,  s.  5  (i),  extended  the  remedy  of  distress 
to  rents-seek,  rents  of  assize,  and  chief-rents,  and  thereby 
in  effect  abolished  nearly  all  material  distinction  between 
them  (/r). 

On  other  lands.  —  Distress  for  rent  may,  by  agreement,  be 
made  upon  other  lands  of  the  lessee  than  those  out  of  which 
the  rent  issues.^  This  was  held  by  the  Exchequer  Chamber 
upon  the  construction  of  a  mining  lease  (/). 

Right  to  distrain  may  be  postponed.  —  The  right  of  distress 
is  not  so  inseparable  an  incident  to  rent-service  that  it  can- 
not be  postponed.  Therefore  a  landlord  may  for  good  con- 
sideration undertake  not  to  distrain  for  six  months  (m),  a 
mesne  landlord  may  contract  not  to  distrain  until  after  he 
has  produced  to  his  tenant  a  receipt  for  the  rent  for  the  time 
being  due  to  the  superior  landlord  (?t),  and  a  superior  land- 
lord may  undertake  not  to  distrain  on  the  goods  of  an  in- 
tended  lodger   of   his   tenant  (o).     From  an  agreement,  to 

which  the  landlord  of  a  farm  is  privy,  for  a  sale  by 
[*413]  the  tenant  of  *some    eatage  of  pasture    to    a   third 

person,  the  amount  produced  by  the  sale  to  be  paid 

(0  Ante,  376;   Johnson   v.   Faulk-  (h)  Giles  r.  Spencer,  3  C.  B.,  N.  S. 

ner,  2  Q.  B.  925.  244 ;  26  L.  J.,  C.  P.  237. 

(^•)  2  Bhic.  Com.  6 ;  Com.  Dig.  tit.  (o)  Horsfonl  v.  Webster,  1  C,  M. 

Distress  (A.  1).  .  &  R.  090.     Tiie  Lodger's  Goods  Pro- 

(0  Daniel  v.  Stepney,  L.  R.,  9  Ex.  tection  Act  (see  post,  Sect.  9  (f)  )  ren- 

185,  reversing  decision  below,  L.  R.,  ders  such  undertaking  now  generally 

7  Ex.  327 ;  41  L.  J.,  Ex.  208.  unnecessary. 

(m)  Oxenham  v.  Collins,  2  F.  &  F. 
172. 

1  "Where  may  distress  be  made.  —  At  common  law  only  upon  the 
demised  ])remises.  Musby  v.  Leeds,  3  Calls.  (Va.)  380;  Geigcr's  Adm'r  v. 
Ilarman's  Ex'r,  3  Gratt.  (Va.)  130;  Bradley  u.  Piggot,  Walker  (Miss.)  348 
(even  tenant's  goods  ordinarily). 

In  Illinois  personal  property  of  tenant  may  be  distrained  anywhere  in 
county  where  he  resides  (Sts.  of  111.  ch.  80,  sec.  10;  Uhl  v.  Dighton,  25  III. 
154). 

In  Koitiirki/  likewise  (Gen.  Sts.  ch.  CO,  sec.  11;  Mitchell  >:  Franklin,  3 
J.  J.  Marsh.  (Ky.)  477;  Lougee  v.  Colton,  9  Dana,  123). 

In  Cf-onjid  the  pro[)erty  of  tenant  may  be  distrained  wherever  found  (Code, 
sec.  4082;  Hale  i:  Burton,  Dudley  ((ia.)  105;  Holland  r.  Brown,  15  Ga.  113; 
McMahan  v.  Tyson,  23  Id.  43;  Thornton  /•.  Wilson,  55  Id.  007). 


Ch.  XI.  S.  1.]  DEFINITION   OF  DISTRESS.  *413 

to  the  landlord,  a  contract  by  him  may  be  inferred  not  to 
distrain  cattle  put  on  the  demised  land  to  consume  the 
eatage  (^^). 

Rent  under  agreement  for  lease.  —  Although  a  distress  may 
be  taken  for  any  rent,  including  that  due  from  tenants  at 
will  (^),  it  cannot  at  common  law  be  made  for  the  rent  men- 
tioned in  a  more  agreement  for  a  lease,  not  amounting  to  an 
actual  demise,  where  no  tenancy  at  an  agreed  rent  has  been 
created  expressly  or  impliedly  by  the  payment  of  rent  or 
otherwise  (/•).  Where  a  tenant  holds  over  on  sufferance 
only,  as  there  is  then  no  "agreed  rent,"  a  distress  cannot 
lawfully  be  made,  but  the  remedy  is  by  an  action  for  use  and 
occupation  (s). 

Rent  reserved  in  an  assignment.  —  If  a  mere  termor  affect 
to  grant  a  lease  for  a  term  exceeding  his  own  in  duration, 
and  to  reserve  an  annual  rent,  that  would  operate  as  an 
assignment  of  his  term  (Q,  and  the  stat.  4  Geo.  2,  c.  28, 
s.  5  (m),  does  not  give  power  to  distrain  for  such  a  rent  (x). 

Fee  farm  rents.  —  With  respect  to  fee  farm  rents,  it  has 
been  held  that  a  distress  is  not  incident  to  them,  unless  the 
case  be  brought  to  within  the  4  Geo.  2,  c.  28,  s.  5  (?/). 

Rent  of  incorporeal  hereditaments.  —  A  distress  cannot  gen- 
erally be  made  for  a  rent  reserved  upon  a  letting  of  incorpo- 
real hereditaments,  as  tithes,  commons  or  tolls  (z)  ;  but  a 
poAver  of  distress  may  be  expressly  reserved  in  such  lease  in 
like  manner  as  in  the  grant  of  a  rent-charge. 

Furnished  apartments.  —  A  distress  may  be  made  for  the 
whole  rent  reserved  on  a  letting  of  furnished  apartments, 
because  in  contemplation  of  law  the  rent  issues  out  of  the 

(;))  Horsford  w.  Webster,  sj/jora.  280;  Jenner  v.  Clegg:,  1   Moo.   &  R. 

(7)  Lit.  s.    72;    Doe  d.    Diivies    v.  213;  Williams  v.  Stiven,  9  Q.  B.  14. 
Thomas,  6  Exch.  858  ;  Doe  d.  Dixie  (0  Ante,  Ch.  VII. 

V.   Davies,    7    Exch.   91  ;    Turner    v.  (u)  Ante,  377. 

Barnes,  2  B.  &  S.  435 ;  31  L.  J.,  Q.  B.  (x)  Langford  v.  Selmcs,  3  K.  &  J. 

170.  220;  3  Jur.,  N.  S.  859. 

(/•)  Dunk  V.  Hunter,  5  B.  &  A.  322.  (y)  Bradbury  v.   Wright,  2   Doug. 

As  to  effect  of  Judicature  Act  on  this  624  ;  Musgrave  )'.  Emnierson,  10  Q.  B. 

doctrine,  see  Walsh   v.  Lonsdale,  L.  326;  Smith  L.  &  T.  189  (2nd  ed.). 
R.,  21  Ch.  D.  9,  and  p.  86,  ante.  (-)  Co.  Lit.  47  a :    Jewel's  case,  5 

(s)  Alford  V.  Vickery,  Car.  &  M.  Co.  R.  3;   Smith  L.  &  T.   116  (2nd 

ed.). 

651 


*414  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  2. 

realty  only,  and  not  out  of  the  furniture  (rt)-^  ^^^  where 
the  owner  of  a  factory  lets  standings  therein  for  looms,  and 
supplies  the  power  of  working  them  at  so  much  per  week 
(there  being  no  demise  of  the  room),  he  cannot  distrain  for 
the  weekly  payments  as  for  rent  (6).  It  is  otherwise  where 
a  definite  part  of  the  room  is  demised,  with  the  use  of  steam- 
power  for  working  machines,  &c.  (c). 

Liquidated  damages.  —  Liquidated  damages  or  forfeitures 
for  breaking  up  pasture  or  meadow  land,  or  for  carrying 
hay,  straw,  &c.,  off  the  demised  premises,  at  certain  fixed 
sums  in  proportion  to  the  extent  of  the  breach,  "  to  be  recov- 
ered by  distress  as  for  rent  in  arrear,"  may  be  distrained  for, 

though  the  lease  is  not  under  seal  (tZ). 
[*414]       *  Double   rent.  —  Double   rent   payable   under   11 
Geo.  2,  c.  19,  s.  18,  may  be  distrained  for  (e) ;  and 
the  exception,  once  said  to  obtain  in  the  case  of  a  weekly 
tenant  (/),  appears  to  have  been  founded  on  a  mistake  (^). 

Manual  service.  —  A  distress  may  be  made  where  the  ten- 
ant holds  by  the  service  of  cleaning  the  parish  church,  or  of 
ringing  the  church  bell  at  stated  times,  or  by  other  manual 
services  (7i)  ;  but  in  such  case  the  distress  cannot  be  sold. 


Sect.  2.  —  Conditions  precedent  to  Distress. 

Right  to  distrain.  —  Where  the  right  to  disti'ain  exists, 
nothing  but  payment,  or  something  equivalent  to  payment, 
such  as  a  tender  of  the  arrears,  or  a  release  under  seal,  will 
be  sufficient  to  take  it  away :  even  attending  upon  the  land 

(n)  Newman  v.  Anderton,  2  Bos.  &  (f)  Johnstone  v.  Iludlestone,  4  B. 

P.  New  R.  224.  &  C.  022.     As  to  "double  rent,"  see 

(h)  Hancock  v.  Austin,  14  C.  B.,  N.  post,  Chap.  XX.,  Sect.  2  (c). 
S.  634;  .'',2  L.  J.,  C.  P.  252;  and  see  (/)  Sullivan  v.  Bishop,  2  C.  &  P. 

Edinondson  v.  Nuttall,  17  C.  B.,  N.  359. 
S.  280.  ((/)  Bullen  on  Distress,  116,  note; 

(r.)  Selliy  v.  Greaves,  L.  K.,  3  C.  P.  2  Chit.  PI.  344,  note  {>•),  (7th  ed.). 
694 ;  37  L.  J.,  C.  P.  251.  (/<)  Doe  d.  Edney  v.  Benham,  7  Q. 

(d)  Pollitt   V.  Forrest,  1   C.  &  K.  B.  976. 
560;  11  Q.  B.  949. 

^  Rents  "may  issue  out  of  lands  .  .  .  and  their  furniture."  Lowrie,  J.,  in 
Micklc  V.  Miles,  31  Pa.  St.  20  (a  stocked  dairy  farm). 

652 


Cn.  XI.  S.  2.]       CONDITIONS   PRECEDENT   TO   DISTRESS.  *415 

on  the  proper  day  to  pay  the  rent  will  not  destroy  the  right 
to  distrain  unless  a  tender  be  actually  made  (i). 

Allowance  of  deductions.  — But  where  a  landlord's  receiver 
allowed  the  tenant  to  make  a  deduction  of  payments  for  land 
tax  every  year  for  seventeen  years,  greater  than  the  landlord 
was  liable  to  pay,  the  landlord  knowing  or  having  the  means 
of  knowing  all  the  facts ;  it  was  held,  that  he  could  not  dis- 
train for  the  amount  erroneously  allowed,  for  such  allowance 
operated  as  payments^  though  the  receipt  given  every  year 
showed  the  amount  paid  and  the  amount  deducted  (Jc). 

Taking  security,  &c.  —  We  have  already  seen  that  it  has 
been  held  that  neither  taking  a  security  for  rent  (?),^  nor  an 
agreement  to  take  interest  (wi),  nor  a  set-off  to  an  equal  or 
greater  amount  than  the  rent  in  arrear  (w),  can  take  away 
the  landlord's  right  to  distrain. 

Tender  before  distress.  —  A  distress  cannot  lawfully  be 
made  after  the  full  amount  of  rent  really  due  has  been  ten- 
dered to  the  landlord,  or  to  his  agent  having  authority  to 
receive  the  rent  (o).  If  the  landlord  or  his  agent  sign  a  dis- 
tress warrant  and  deliver  it  to  the  broker,  but  before  he  can 
effect  an  entrance  to  distrain,  the  tenant  or  his  agent  tenders 
the  rent  without  expenses  to  the  landlord  or  his  agent,  it  will 
be  illegal  afterwards  to  execute  the  distress  warrant, 
and  all  parties  concerned  *  therein  will  be  liable  to  [*415] 
an  action  of  trespass  (p)  or  trover  {q). 

Tender  before  impounding.  —  After  the  distress  has  been 
made,  but  before  it  is  impounded.,  the  tenant  may  tender  to 

(i)  Home  V.  Lewin,  1    Ld.  Rayni.  Davenport,  5  C.  &  P.  531  ;  and  see 

639;  1  Salk.  583;  12  Mod.  352.  Pratt  v.  Keith,  33  L.  J.,  Cli.  528;  10 

(Jc)  Branston  v.  Robins,  4  Bing.  11 ;  Jur.,  N.  S.  305. 

Waller  i'.  Andrews,  3  M.  &  W.  312.  (o)  Branscomb  v.  Bridges,  1  B.  & 

(/)  Davis  V.  Gyde,  2  A.  &  E.  623.  C.  145;  3  Stark.  R.  171;  Holland  v. 

(»i)  Skerry  v.  Preston,  2  Chit.  R.  Bird,  10  Bing.  15;  Bennett  r.  Bayes, 

245.  5  H.  &  X.  391 ;  29  L.  J.,  E.x.  391. 

(n)  Absalam  v.  King,  Bull.  X.  P.  (;>)  Bennett  v.  Bayes,  5  H.  &   N. 

181;    Barnes,  450;    Andrew  v.   Han-  391;  29  L.  J.,  Ex.  391. 

cock,  1   Brod.   &  B.  46,  47  ;  Stubbs  Qj)  Hatch  v.  Hale,  15  Q.  B.  10. 
V.  Parsons,  3  B.  &  A.  521 ;  Wilson  v. 

^  As  to  effect  of  taking  promissory  note,  or  recovering  judgment  upon 
riglit  to  distrain,  see  post,  sec.  11,  note,  "  Distress,  when  may  be  made." 

653 


*415  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  2. 

the  landlord  or  his  agent  the  amount  of  the  rent,  together 
with  a  sufficient  sum  for  the  costs  of  the  distress  (r)  ;  after 
which  it  will  be  illegal  to  proceed  further  with  the  dis- 
tress (cs). 

Tender  after  impounding.  —  But  a  tender  of  the  rent  with 
expenses  after  the.  impounding  is  too  late  to  enable  the  tenant 
to  maintain  an  action  of  trespass,  trover,  detinue  or  i-eplevin ; 
because  the  cattle  or  goods  are  then  in  the  custody  of  the 
law,  and  not  of  the  landlord  or  his  agent  (^).  The  subse- 
quent detention  is  considered  as  the  act  of  the  law,  and  not 
of  the  distrainer  who  has  neither  any  property  nor  even  a 
constructive  possession  of  the  cattle  or  goods  distrained  (?/)  ; 
and  although  they  might  be  released  with  his  consent,  he  is 
not  legally  bound  to  give  such  consent.  However,  if  such 
tender  be  made  within  the  five  days  allowed  to  the  tenant  to 
replevy  (although  after  the  impounding),  a  special  action  on 
the  case,  founded  on  the  equity  of  the  stat.  2  W.  &  M.  sess. 
1,  c.  5,  s.  2,  may  be  maintained  if  the  landlord  afterwards 
proceed  to  sell  the  distress  (.r).  To  avoid  tliis  the  landlord 
should,  after  such  a  tender,  abstain  from  selling  (which  he 
may  lawfully  do)  and  merely  keep  the  distress  impounded 
as  a  pledge,  according  to  the  common  law,  until  the  arrears 
of  rent,  with  expenses,  are  actually  satisiied,  or  the  tenant 
incurs  the  trouble  and  expense  of  a  replevin,  the  costs  of 
which  will  fall  upon  him. 

What  amounts  to  an  impounding.  —  Whether  the  distress 
was  "  impounded  "  before  the  tender  was  made  is  sometimes 
a  question  of  considerable  nicety  and  importance.  In  one 
case  the  landlord's  agent  had  delivered  to  the  tenant  a  notice 
of  distress,  wherein  it  was  stated  that  the  cattle  distrained,  of 
which  an  inventoiy  had  been  given,  were  impounded  on  the 

(r)  Post,  Sect.  8  (e).  v.  Field,  8  E.  &  B.  .^30;  Smith  L.  & 

(s)  Vertue  v.  Boasley,  1  Moo.  &  K.  T.  208  (2nd  ed.). 

21;  Evans  u.  Elliott,  5  A.  &  E.  142;  (ii)  Rex    v.   Cotton,   Parker,   121; 

Ladd  V.  Thomas,  12  A.  &  E.  117.  Turner  v.   Ford,   15   M.   &  W.  212; 

(I)  Six  Carpenters'  case,  8  Co.  R.  Wilbraham  v.  Snow,  2  Wms.  Saund. 

4.''>2;   1   Smith   L.  C.   l.']."]   (7th  ed.) ;  47  a. 

Firth  V.  Purvis,  5  T.  R.  4.'}2 ;  Thomas  (.r)  Jolinson  v.   ITpham,  2  E.  &  E. 

V.  Harries,  1   M.  &  G.  01)5;   Ladd  v.  250;  28  L.  J.,  Q.  15.  252;  overrulinK 

Tliomas,   12    A.    &   E.    117;    Ellis    v.  Ellis  j).  Taylor,  8  M.  &  W.  415. 
Taylor,    8    M.    &    \V.    415;   Tennant 

654 


Ch.  XI.  S.  2.]        CONDITIONS    PRECEDENT   TO   DISTRESS.  *416 

premises  ;  it  was  held,  that  the  impounding  was  complete  so 
as  to  make  a  subsequent  tender  unavailing  (//).  In  another 
case,  a  landlord's  agent  went  upon  the  tenant's  premises,  and 
walked  round  them,  and  gave  a  written  notice  that  he  had 
distrained  certain  goods  lying  there  for  an  arrear  of  rent,  all 
which  goods,  he  had  left  on  the  said  demised  premises^  and  that 
unless  the  rent  was  paid,  or  the  goods  replevied  within  live 
days,  they  would  be  appraised  and  sold  according  to  law,  and 
then  went  away  without  leaving  any  person  in  posses- 
sion. It  was  lield,  that  *  there  was  a  sufficient  distress  [*416] 
and  impounding  on  the  premises  pursuant  to  11  Geo. 
2,  c.  19,  s.  10  (z).  In  a  third  case,  a  landlord  entered  upon  a 
dwelling-house  to  distrain,  but,  to  prevent  inconvenience  to 
the  tenant,  the  landlord,  with  the  tenant's  assent,  instead  of 
removing  the  articles  of  furniture  upon  which  he  proposed 
to  distrain,  made  up  from  a  list  given  to  him  by  the  tenant 
an  inventory  of  the  furniture  in  the  house,  put  a  man  into 
possession,  and  handed  to  the  tenant  a  notice  of  distress 
referring  to  the  inventory,  which  was  also  then  handed  to 
the  tenant.  The  landlord  did  not  go  into  the  several  rooms 
in  which  the  articles  were,  and  the  notice  of  distress  did  not 
state  that  the  articles  were  impounded.  It  was  held,  that 
this  constituted  a  distraining  of  the  articles  mentioned  in  the 
inventory,  and  an  impounding  them  upon  the  premises,  and 
that  a  tender  subsequently  was  too  late  («). 

To  whom  tender  made.  —  A  tender  may  be  made  to  the  land- 
lord himself,  notwithstanding  he  has  instructed  a  broker  to 
distrain  and  left  the  matter  in  his  hands  (6).  So  it  may  be 
made  to  any  agent  of  the  landlord  who  has  express  or  implied 
authority  to  receive  rent  on  his  behalf  (<?).  Where  a  land- 
lord gives  a  warrant  to  distrain  for  rent  in  the  usual  form, 
he  thereby  in  effect  authorizes  the  bailiff  to  receive  the  rent, 

(//)  Thomas  v.  Harries,  1  M.  &  G.  private  pound,  but  before  they  have 

C95.  been  sent  (as  intended)  to  the  public 

(s)  Swann  v.  Earl  of  Falmouth,  8  pound,  is    not   too   late.     Browne    r. 

R.  &  C.  450.  Tovvell,  4  Bing.  2;:!(). 

(a)  Tennant  v.  Field,  8  E.  &  B.  H.'U).  {b)  Smith  i-.  Goodwin,  4  B.  &.  Add. 

Where  sheep  are  distrained  for  dam-  411]. 

age  feasant,  a  tender  of  amends  after  (c)  Bennett   v.  Bayes,  5   H.  &  N. 

Ihe    sheep    have    been    put    into    a  .391  ;  29  L.  J.,  Ex.  391. 

655 


*417  DISTRESS    FOR    RENT.  [Cii.  XI.  S.  'Z. 

if  tendered:  and  it  seems  that  in  such  case  he  could  not 
prohibit  the  bailiff  from  accepting  such  tender,  so  as  to  render 
a  tender  to  him  invalid:  at  all  events,  the  bailiff  cannot  refuse 
a  tender  on  the  ground  that  he  was  forbidden  by  the  landlord's 
solicitor  to  receive  the  money  (d).  A  tender  to  the  landlord's 
agent,  who  signed  the  distress  warrant  on  his  behalf,  is  suffi- 
cient (e).  But  a  tender  to  the  broker's  man,  who  is  merely 
left  in  possession  under  the  distress,  and  has  no  actual 
authority  to  receive  the  money,  is  bad(/),  and  so  is  a  tender 
to  a  servant (^).  Where  it  appeared  that  the  distrainer's 
wife  had  been  in  the  usual  habit  of  acting  as  his  agent  in 
such  matters,  and  had  in  his  absence  made  a  distress  for 
damage  feasant;  it  was  held,  that  a  tender  to  her  of  amends 
was  sufficient  (A). 

Tender  must  be  in  full,  with  expenses.  —  The  tenant  must,  at 
his  peril,  tender  the  full  amount  of  the  rent  in  arrear,  with- 
out any  deductions,  except  in  respect  of  actual  or  constructive 
payments  on  account  thereof  (not  items  of  set-off).    He  must 

also  tender,  at  his  peril,  a  sufficient  sum  for  the  law- 
[*417]  ful  *  expenses  of  the  distress  (^),  unless  indeed  the 

tender  be  made  before  anj-  entry  to  distrain  (?).  The 
tender  should  be  made  iineonditionalh/,  so  that  the  party  may 
accept  it  without  prejudice  to  his  right  (if  any)  to  recover 
more.  And  although  Avhere  the  amount  owing  is  not  dis- 
puted, the  .demand  of  a  receipt  and  refusal  to  part  with  the 
rent  without  one,  would  seem,  under  the  present  Stamp  Act, 
not  to  vitkite  the  tender  (m),  a  tender  of  one  quarter's  rent, 
coupled  with  a  demand  of  a  receipt  up  to  a  particular  day, 
tliere  being  a  dispute  whether  one  or  two  quarters'  rent  was 
then  due,  is  not  valid (n);    but  sending  a  certain  sum  "to 


(fi)  Hatch  V.  Hale,  15  Q.  R.  10.  (m)  See  Ridiarrlson  v.  .Tackson,  8 

(/')  Bennett  v.  Raycs,  supra.  M.  &  W.  2fl8.     Tlio  prior  enactments 

(/)  Boiilton  V.  Reynolds,  2  E.  &  E.  on  the  subject,  48  Geo.  3,  c.  12(5,  ss.  4, 

.309;  20  L.  .7.,  Q.  ]}.]!.  5  (see   Lain^'  r.  Meadcr,  1  C.    &    V. 

(r/)  Pilkington    i-.    Hastings,    Cro.  257)  ;   55   Geo.   3,   c.    184,   Sch.   tit. 

Eiiz.  81.3.  Receipt,    are    repealed    by    3.3    &    34 

(/()  Browne  v.  Powell,  4   Bing.  2:)0.  Viet.  c.  90,  nnd  the  law  is  now  gov- 

(k)  Post,  Sect.  8.  erned  by  the  Stamp  Act,  1870,  s.  12.3, 

(/)  Bennett   r.   Baycs,  5    H.   &   X.  which  sec,  Appendi.K  A.,  Sect.  7. 

:?0i  ;  29  L.  J.,  Ex.  391.  {»)  Finch  v.  Miller,  6  C.  B.  428. 

6r)() 


Cil.  XI.  S.  2.]  CONDITIONS   PRECEDENT   TO   DISTRESS.         *41  7 

settle  one  year's  rent,"  does  not  impose  a  condition  (o),  nor 
does  a  tender  "under  })rotest"  (p). 

Detention  of  distress  after  payment.  —  A  landlord,  who  has 
accepted  the  rent  in  arrear  and  the  expenses  of  the  distress 
after  the  impounding,  cannot  be  treated  as  a  trespasser  merely 
because  he  retains  possession  of  the  goods  distrained;  although 
his  refusal  to  deliver  them  up  to  the  tenant  may  amount  to 
a  conversion  so  as  to  render  him  liable  in  trover  (g'). 

Property  in  goods  distrained.  —  Notwithstanding  a  distress, 
the  property  in  the  cattle  or  goods  distrained  (whether  im- 
pounded or  not)  remains  vested  in  the  tenant  or  owner 
thereof,  until  they  are  sold  under  the  distress  (r) ;  and  he 
may  sell  or  otherwise  dispose  of  them  subject  to  the  distress ; 
or  whenever  the  distress  is  determined  (without  any  sale)  he 
may  recover  them  back  (r).  So  a  purchaser  from  him  may 
recover  them  in  trover,  where  the  landlord  has  not  sold  the 
goods,  but  taken  them  himself  at  a  valuation,  which  he  had 
no  legal  right  to  do  (.9).  The  landlord  or  person  distraining 
lias  no  property  in  the  cattle  or  goods  distrained,  nor  even 
the  possession  thereof ;  therefore,  if  they  are  rescued,  or 
unlawfully  taken  out  of  the  pound,  he  cannot  maintain 
trover  (?),  but  only  a  special  action  for  rescue  or  pound 
breach  (?t). 

There  must  be  an  actual  demise  at  a  fixed  rent.  —  A  landlord 
has,  at  common  law,  no  right  to  distrain  unless  there  be  an 
actual  demise'^  at  a  fixed  rent  (^x}.^     A  licence  to  get  all  the 

(0)  Brown  v.  Owen,  11  Q.  B.  ISO;  (s)  King  v.  England,  suprn. 

Bull  V.  Parker,  2  Dowl.,  N.  S.  345.  (0  I^ex    v.    Cotton,    Parker,    121 ; 

(p)  Manning  v.  Lunn,  2   C.   &  K.  Wilbraliam  v.  Snow,  2  Saund.  47  a. 
1;;.  (m)  Riddell  v.  Stowey,  2  Moo.  &  R. 

(//)  West  V.  Nibbs,  4  C.  B.  172.  358 ;  Turner  v.  Ford,  15  M.  &  W.  213 ; 

(r)  Turner   v.  Ford,  15    M.   &  W.  post,  Sect.  10. 
212  ;  King  i:  England,  4  B.  &  S.  782 ;  (.r)  Dunk  v.  Hunter,  5  B.  &  A.  322 : 

33  L.  J.,  Q.  B.  145.  Ilegan    r.    Johnson,    2    Taunt.    148; 

I  The  relation  of  landlord  and  tenant  is  essential.  —  Helser  r.  Pott,  3 
Pa.  St.  179.  A  mortgagee,  under  mortgage  prior  to  lea.se,  cannot  distrain. 
M'Kirclier  v.  Hawley,  10  Johns.  (N.  Y.)  289 ;  Souders  v.  Vansickle,  8  N.  J.  L. 
313  ;  Price  v.  Smith,  2  Green's  Ch.  (N.  J.)  516. 

Whether  a  subsequent  mortgagee  could  distrain  would,  doubtless,  depend 
upon  which  theory  of  mortgages  prevailed  where  property  was  situated.  See 
ante,  oh.  1,  sec.  28,  notes. 

"  Fixed  rent.  —  Liability  for  use  and  occupation  is  too  indefinite.  Wells 
V.  Ilornish,  3  Pa.  30 ;  Smoot  v.  Strauss,  21  Fla.  611 

657 


*418  DISTRESS    FOK    RENT.  [Cii.  XI.  S.  2. 

copperas  stone  wliicli  may  be  found  in  part  of  a  manor,  for 
twenty-one  years,  at  the  yearly  rent  of  25Z.,  is  not  a 
[*418]  demise,  and  will  not  support  a  distress  *  for  the  agreed 
rent(^).  Where  a  tenant  holds  over  on  sufferance 
only,  as  there  is  then  no  "agreed  rent"  or  actual  tenancy,  a 
distress  cannot  lawfully  be  made,  but  the  remedy  is  by  action 
for  use  and  occupation  (2).  Where  a  lease  of  tithes  and  land 
was  granted  at  an  entire  rent,  and  it  was  void  as  to  the  tithes, 
because  it  was  not  under  seal ;  it  was  held,  that  a  distress  for 
an  arrear  of  rent  was  altogether  unlawful,  because  there  was 
no  distinct  rent  due  for  the  land  (a).  Where  a  lease  was  made 
by  parol  of  100  acres  of  land  at  a  certain  rent,  and  the  lessee 
accepted  the  lease  and  entered  upon  the  land,  but  afterwards 


Regnant  v.  Porter,  7  Bing.  451 ;  Wat-  (r)  Alford   v.  Viokery,  Car.  &  M. 

son  V.  Waud,  8  Exeh.  335  ;  Hancock  280 ;  Jenner  v.   Clegg,  i   Moo.  &,  R. 

V.  Austin,  14  C.  B.,  N.  S.  634.     As  to  213;  Williams  v.  Stivcn,  9  Q.  B.  14. 
distress    under   mere    agreement    for  (a)  Gardiner  r.  Williamson,  2  B.  «& 

lease  since    the   Judicature   Act,  see  Adol.  337  ;  see  also  Meggison  v.  Lady 

Walsh  V.  Lonsdale,  L.  R.,  21  Ch.  I).  Glamis  and  Sells  v.  Same,  7  Exch. 

9,  and  p.  80,  ante.  085. 

(jj)  Ward  I'.  Day,  33  L.  J.,  Q.  B.  3, 
254. 


To  pay  seventy  dollars  per  annum  in  repairs  is  sufficient.  Smith  v.  Colson, 
10  Johns.  (N.  Y.)  91. 

To  make  repairs  (of  no  estimated  value)  was  held  too  indefinite  in  Grier  v. 
Cowan,  Add.  (I'a.)  347. 

To  pay  taxes  and  daub  and  chink  a  house  was  held  a  certain  rent  in  pro- 
ceedings for  possession  in  Shaffer  v.  Sutton,  5  Biiiii.  228. 

It  has  been  many  times  held  that  rent  payable  in  kind  or  specific  articles 
might  be  distrained  for.  Owens  v.  Conner,  1  Bibb  (Ky.)  005  (rent  payable  in 
iron.  The  court  said,  "  id  certum  est  quod  certum  reddi  potest");  Jones  c. 
Gundrim,  3  W.  &  S.  (Pa.)  531  (iron)  ;  Fry  v.  Jones,  2  IJawle  (Pa.)  11  (tolls 
of  grist  mill).;  Xowery  v.  Connolly,  29  Q.  B.  (Out.)  39  (fractionaJ  share  of 
crops)  ;  Prestons  v.  McCall,  7  Graft.  (Va.)  121  (fractional  share  of  salt). 

In  Illinois  it  is  expressly  jjrovided  tiiat  rent  pa_yal)le  in  specific  articles, 
labor,  &c.,  may  be  distrained  for.  Sts.  ch.  80,  sec.  29;  Craig  v.  Merinu',  10 
111.  Aj)]).  214  (l)room  corn). 

//(  Indiana  it  has  been  held  in  two  cases  that  rent  payable  in  kind  cannot 
be  distrained  for,  not  being  a  certain  rent.  Bowser  v.  Scott,  8  lilackf.  8()  (rent 
payable  by  the  acre  in  wheat,  corn,  oats,  &c.)  ;  Clark  v.  Fraley,  3  Id.  2((4 
Clease  on  shares  at  rental  of  one-third  of  the  corn).  In  Purcell  v.  Thomas,  7 
Id.  300,  lield  tliat  rent  payable  in  Indiana  scrip  could  not  be  distrained  for. 

In  Kaufman  v.  Myers,  38  (ia.  133,  it  was  held  that  rent  ))ayab!e  in  Ameri- 
can gold  coin  might  be  distrained  for  at  market  value  in  legal  tenders. 

(ins 


Cii.  Xr.  S.2.]  CONDITIONS    PRECEDENT   TO   DISTRESS.         *419 

found  that  eight  acres  liad  been  previously  demised  by  his 
lessor  to  another  person  who  was  in  possession ;  it  was  held, 
that  the  demise  was  altogether  void  as  to  the  eiglit  .acres,  and 
that  the  rent  could  not  be  apportioned,  and  therefore  could 
not  be  distrained  for  (6)  :  but  it  would  have  been  otherwise 
if  the  demise  had  been  .under  seal,  because  that  would  have 
operated  as  a  grant  of  the  reversion  and  its  incidents,  as  to 
the  eight  acres,  and  no  apportionment  of  the  rent  would  have 
been  necessary  (c).  A  rent  of  a  certain  sum  j^er  cube  yard 
of  marl  dug,  and  a  certain  sum  per  thousand  of  bricks  made 
from  ehiy  dug  from  land,  is  a  rent  wliich  may  be  ascertained 
with  certainty,  and  which  therefore  may  be  distrained  for  (d}. 
Where  the  demise  was  subject  to  certain  rents,  provisions, 
and  stipulations,  and  amongst  others  that  the  lessee  should 
not  sell  hay  off  the  premises,  under  the  penalty  of  2s.  6<i. 
per  yard  of  the  hay  sold,  to  be  recovered  by  distress  as  for 
rent  in  arrear ;  it  was  held,  that  this  was  recoverable  by 
distress  as  for  rent,  but  was  not  a  rent(e). 

Agreement  for  lease.  —  Where  a  person  is  in  possession 
under  a  mere  agreement  for  a  lease,  not  amounting  to  an 
actual  demise,  and  no  other  circumstances  exist  from  which 
a  tenancy  at  a  fixed  rent  can  be  implied  and  found  by  a 
jury ;  the  common  law  rule  is  that  as  no  rent  (properly  so 
called)  is  due  for  the  occupation,  but  only  a  compensation 
in  the  nature  of  rent,  the  owner  cannot  distrain  for  non-pay- 
ment (/);  b^t  that  if  the  agreement  goes  on  to  say,  that 
until  the  lease  shall  be  executed,  the  rent,  covenants  and 
agreements  to  be  therein  contained  shall  be  paid  and  observed, 
and  the  several  rights  and  remedies  shall  be  enforced  in  the 
same  manner  as  if  the  same  had  been  actually  executed ;  that 
will,  on  entry,  create  a  tenancy  at  a  fixed  rent,  for 
which  the  landlord  may  distrain  when  due,.*  although  [*419] 
no  rent  has  been  paid  under  the  agreement  (,^)  ;  and 

(b)  Neale  v.  Mackonzic«(in  error),  (c)  Pollitt  v.  Forrest,  11  Q.  B.  949; 

1  M.  &  W.  747;  Holgate  c.  Kay,  1  C.  1  C.  &  K.  5(50. 

&  K.  341.  (/■)  Dunk   v.    Hunter,  5  B.   &  A. 

(r)  Ecol.    Commrs.    of    Ireland   v.  .322  ;  Hegan  r.  Johnson,  2  Taunt.  148. 

O'Connor,  9  Ir.  Com.  L.  R.  242 ;  Lake  (//)  Anderson  v.  Midland  K.  Co.,  8 

r.  Dean,  28  Beav.  007.  E.  &  E.  014  ;  30  L.  J.,  Q.  B.  94  ;  Pin- 

((/)  Daniel  v.  Grade,  6  Q.  B.  145.  ero  v.  Judson,  0  Bing.  200  ;  Rollason 

659 


*419  •  DISTRESS    FOR    RENT.  [Cii.  XI.  S.  2. 

similarly  that  where  an  intended  purchaser,  by  the  contract 
of  sale,  admits  himself  to  be  tenant  from  week  to  week  to 
the  vendor,  at  a  specific  rent  per  week  payable  in  advance  or 
otherwise,  such  rent  may  be  distrained  for  (A).  But  these 
cases  must  now  be  compared  with  Walsh  v.  Lonsdale  (f). 

Implied  tenancy  at  fixed  rent.  —  An  actual  tenancy  at  a 
fixed  rent  may  be  implied  from  very  slight  circumstances ; 
thus  where  a  tenant,  who  had  entered  on  premises  under  an 
agreement  for  a  lease,  admitted  a  charge  of  half-a-year's  rent 
in  an  account  between  him  and  his  landlord ;  it  was  held, 
that  this  was  equivalent  to  payment,  and  constituted  him  a 
tenant  from  year  to  year,  and  made  him  liable  to  a  dis- 
tress (k').^  Where  the  plaintiff  took  possession  of  premises 
under  an  agreement  for  a  lease  to  him  for  seven  years,  at  a 
yearly  rent  payable  half-yearly,  but  no  lease  was  executed, 
nor  was  the  quantum  of  rent  to  be  paid  ascertained ;  and 
the  plaintiff  occupied  under  the  agreement  for  three  years, 
and  paid  rent  for  two ;  it  was  held,  that  this  created  a  ten- 
ancy from  year  to  year,  and  entitled  the  landlord  to  distrain 
for  the  arrears  due  at  the  rate  previously  paid  (?).  But 
where  a  tenant  entered  under  an  agreement  containing  stipu- 
lations for  a  lease  at  251.  per  year,  and  an  engagement  by 
the  landlord  to  complete  certain  erections,  which  were  never 
completed,  nor  any  rent  paid,  and  the  tenant,  on  being  called 
on  after  some  years'  occupation,  said  he  was  ready  to  pay 
upon  the  erections  being  completed  and  an  allowance  made 
to  him  for  some  repairs ;  it  was  held,  that  a  demise  at  a  cer- 
tain rent  could  not  be  implied  so  as  to  entitle  the  landlord 
to  distrain  (?»).     So  where  a  person  let  a  furnished  house  at 

V.  Leon,  7  II.  &  N.  73 ;   31  L.  J.,  Ex.  (L)  Cox  v.  Bent,  5  Bing.  185;  Vin- 

90.  cent  v.   Godson,   24    L.  J.,  Ch.   122  ; 

(//)  Yeoman  v.  Ellison,  L.  R.,  2  C.  Smitli  L.  &  T.  27  (2n(l  ed.). 

V.  081  ;  30  L.  J.,  C.  V.  326.     In  this  (/)  Knigiit   v.  Bennett,   11    Moorc, 

case  the  rent  was  80/.  a  week.  222. 

(i)  Ajile,  86.  (?«)  Kegnant    v.    Porter,   7    Bing. 

451. 

'  A  tenant  from  year  to  year,  at  a  fixed  rent,  is  lialile  to  distress,  Sturdee 
r.  Merritt,  3  Kill's  (N.  IJ.)  041  ;  so  is  a  tenant  holding  over  after  a  term  and 
paying  rent,  Macgregor  r.  Defoe.  14  Ont.  87 ;  and  a  lessee  at  will,  if  he  paj's  a 
fixed  rent,  Buckley  v.  Russell,  24  N.  B.  205. 

660 


Cii.  XI.  S.  2. J  CONDITIONS   PRECEDENT   TO   DISTRESS.         *420 

a  certain  rent  from  a  future  day,  and  agreed  that  he  wouhl 
furnish  it  suitably  for  a  school ;  it  was  held,  that  such  fur- 
nishing was  a  condition  precedent  to  the  right  to  demand 
the  rent,  and  therefore  that  the  lessor,  not  having  furnished  it, 
could  not  distrain  (/i).  Where  a  jjerson  entered  upon  prem- 
ises subject  to  the  approbation  of  the  landlord,  who  after- 
wards did  not  approve,  but  upon  his  agreeing  to  pay  an 
advanced  rent,  as  well  for  the  time  he  had  been  in  posses- 
sion as  for  the  future,  allowed  him  to  continue  in  possession  ; 
it  was  held,  that  the  landlord  might  distrain  for  the  advanced 
rent  accrued  before  the  agreement  as  well  as  for  what  accrued 
afterwards  —  such  agreement  giving  him  the  same  power  by 
relation  to  his  tenant's  first  entry  into  possession,  as  it  did 
to  recover  his  rent  in  future  (o). 

Acknowledgment.  —  An    *  acknowledgment   of  an  [*420] 
antecedent  tenancy  at  a  specified  rent,  with  an  agree- 
ment to  go  on  on  certain  terms,  is  sufficient  to  authorize  a 
distress  (p^.. 

Surrender.  —  If  a  tcnailcy  has  existed,  a  surrender  of  tlie 
term  must  be  complete  {cf)^  or  the  landlord's  right  to  dis- 
train will  continue  (r). 

Eviction.  — ^  If  a  tenant  is  evicted  by  titl^  paramount,  but 
remains  in  possession  under  a  new  agreement  with  the  per- 
son who  had  evicted  him,  his  original  landlord  cannot  dis- 
train on  him  for  rent  (s).  If  a  lessor  exercise  his  option 
that  a  lease  shall  be  void  for  breach  of  covenant,  he  cannot 
distrain  for  subsequent  rent  (t). 

Notice  to  quit.  —  Where  the  landlord  has  given  a  notice  to 
quit  and  the  tenant  holds  over,  but  nothing  is  done  to  show 
that  a  new  tenancy  is  created,  the  landlord  cannot  distrain 
for  rent  accruing  due  after  the  time  when  the  notice  ex- 

(n)  Mechelen  v.  Wallace,  7   A.   &  (r/7  Ante,  Ch.  VIII. 

E.  49;  Vaughan  v.  Hancock,  3  C.  B.  (r)  Coupland  v.  Maynard,  12  East, 

766.  134. 

(o)  M'Leish  v.  Tate,  Cowp.  781.  (.s)  Hopcraft  v.  Keys,  9  Ring.  613. 

(/))  Eagleton  v.  Gutteridge,  11  j\I.  (<)  Jones  v.   Carter,   15    M.  &    W. 

F^    W.   465;    2    Dowl.,   N.    S.    1053;  718;  Franklin  r.  Carter,  1  C.  B.  750 ; 

Gladman  v.  Plumer,  15  L.  J.,  Q.  B.  3  D.  &  L.  213  ;  Bridges  v.  Smyth,  5 

79 ;  10  Jur.  109.  Bing.  410  ;  Cole  Ejec.  82,  408. 

661 


*421  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  3. 

pired  (?^).  In  a  previous  case  a  distress  for  rent  accruing 
after  the  expiration  of  a  notice  to  quit  was  considered  to 
operate  merely  as  a  waiver  of  the  notice  (.r).  It  should 
however,  be  borne  in  mind  that  a  notice  to  quit  cannot  be 
waived  without  the  express  or  implied  consent  of  both  par- 
ties, and  that  it  differs  in  this  respect  from  a  forfeiture  Oy). 

Prolongation  by  custom.  —  Where  it  appeared  that  by  the 
custom  of  the  country  the  tenant  was  to  have  the  use  of  the 
barns,  gate-houses,  &c.,  of  the  farm  for  a  certain  period  after 
the  end  of  the  term,  for  the  purpose  of  thrashing  out  corn 
and  foddering  cattle :  and  the  tenancy  was  determined  at 
Michaelmas,  and  the  landlord  in  the  January  following  dis- 
trained a  corn-rick  for  rent  due  at  Michaelmas,  he  having  in 
the  meantime  obtained  an  injunction  to  restrain  the  tenant 
from  carrying  off  the  premises  corn  in  the  straw ;  it  was 
held,  that  the  holding  by  the  tenant  under  the  custom, 
though  involuntary,  was  a  j^'^olongation  of  the  original  term, 
and  that  tli^  landlord  was  entitled  to  distrain  (z). 


Sect.  3.  —  Restraining  Distress  by  Injunction. 

Injunction  against  distress.  —  Before  the  Judicature  Acts  a 
distress  could  not  be  restrained  by  injunction  (a).  But 
section  25,  subs.  8,  of  the  Judicature  Act,  1875,  which  enacts, 
that  "an  injunction  may  be  granted  by  an  interlocutory 
order  of  the  court  in  all  cases  in  which  it  shall  appear  to 

the  court  to  be  just  or  convenient,"  extends  to 
[*421]  authorize    an   injunction,    and   such  an  *  injunction 

was  granted  in  Shaw  v.  Earl  of  Jersey  (/>).  In  that 
case  the  plaintiffs  were  assignees  of  a  mining  lease,  inider 
which  the  defendant  claimed  to  be  entitled  to  a  certain  ad- 

{n)  Alford  v.  Vickory,  1   C.  &  M.  Nuttall  v.  Staunton,  4  B.  &  C.  51. 
280;   .Tonner  v.  Clefifj,  1   Moo.  &  K.  («)  Shaw  v.  Jersey   (Earl   of),  L. 

213  ;   Williams  v.  Stiven,  0  Q.  B.  14.  R.,  4  C  V.  D.  at  p.   201,  per  Cotton, 

(.t)  Zouch  d.  Ward  v.  Willingale,  L.  J. 
1  II.  Blae.'311.  (A)  L.  U.,  4  C.  P.  D.  359  — C.  A., 

(v)  Blyth  V.  Dennett,  13  C.  B.  178,  affirming  decision  below  ;  L.  R.,  4  C. 

180.  r.  1).  120  ;  48  L.  J.,  C.  P.  308;  27  W. 

{z)  Knight  r.  Bennett,  3  Binjr.  301 ;  R.  787. 
Beavan    v.  Deluliay,    1    II.   Blac.    5; 

GG2 


Cii.  XI.  S.  4.]  WHO   MAY   DISTRAIN.  *421 

ditional  rent.  The  defendant  had  distrained  twice,  and  tlie 
[)hiintiffs  had  sued  for  unhiwful  distress.  A  special  case 
had  been  stated  to  determine  the  construction  of  the  lease. 
The  defendant  was  restrained  from  distraining  until  the 
determination  of  this  case,  by  an  injunction  granted  for  a 
fortnight,  and  to  be  continued  only  if  the  rent  should  in  the 
meantime  be  paid  into  court.  An  injunction  restraining  a 
distress  was  also  granted  in  Walsh  v.  Lonsdale  (c)  upon  the 
terms  tliat  the  rent  be  paid  into  court.  It  may  be  observed 
that  such  a  conditional  injunction  is  more  favourable  for  the 
landlord  than  the  action  of  replevin,  in  which  tlie  tenant  is 
compellable  to  give  security  only,  although  he  may  if  he 
please  make  a  deposit  instead.     (See  post,  Chap.  XII.) 


Sect.  4.  —  Who  may  distrain. 

(a)  Reversioners. 

Distress  incident  to  reversion. — The  person  legally  entitled 
to  the  immediate  reversion  on  a  lease,  when  any  of  the  rent 
thereby  reserved  becomes  due,  may  distrain  for  such  rent 
by  virtue  of  the  common  law.  But  if  he  afterwards  assign 
the  reversion  either  absolutely  or  by  way  of  mortgage,  the 
remedy  by  distress  for  such  arrears  will  be  lost  (d')}  So  the 
right  to  distrain  for  previous  arrears  of  rent  may  be  lost  by 
a  severance  of  the  reversion  :  thus  where  the  plaintiff  was 
tenant  to  six  joint  tenants,  four  of  whom  conveyed  their 
shares  to  a  third  party ;  it  was  held,  that  the  six  were  not 
entitled  to  distrain  for  the  arrears  of  rent  due  to  them  before 
the  conveyance  (e).      But  a  second  lease  to  commence    on 

(c)  Ante,  86.  &  E.  832  ;  28  L.  J.,  Q.  B.  236  ;  Smith 

Id)  BuUen,  26,  74;    Threr  v.  Bar-  v.  Torr,  3  F.  &  F.  505  ;  Smith  L.  &  T. 

ton,  Moore,  94;    Dixon  v.   Harrison,  189  (2nd  ed.). 

Vaughan,  52  ;  Brown  v.  Metropolitan  (c)  Staveley   v.   AU'ock,  16    Q.  B. 

Counties  Life  Insurance  Society,  1  E.  636  ;  20  L.  J.,  Q.  B.  320. 

^  Distress  made  after  date,  but  before  delivery  of  deed  of  reversion,  is 
legal.     Magher  v.  Coleman,  1  R.  &  G.  (N.  S.)  271. 

After  lessor  has  assigned  reversion  in  mortgage  (or  otherwise),  the  prior 
accrued  rent  becomes  a  mere  chose  in  action,  and  cannot  be  distrained  for  by 
any  one.     Dauphinais  v.  Clark,  3  Manitoba,  225. 

663 


*422  DISTRESS   FOE,   RENT.  [Ch.  XI.  S.  4. 

the  expiration  of  the  previous  one,  creates  only  an  interesse 
termini  during  the  continuance  of  the  fii'st  lease,  and  does 
not  amount  to  an  assignment  of  the  reversion  (/).  If  a 
lessee  for  yearti  assiij-n  his  term,  reserving  a  rent,  but  without 
an  express  power  of  distress^  he  cannot  distrain  for  it  when 
in  arrear,  because  he  has  no  reversion  :  his  remedy  is  by  an 
action  on  the  contract  (//).     If  a  lessee  sub-let  for  a  term 

shorter  than  his  own  by  one  day  or  more,  he  has  a 
r*422]   *  reversion  and  consequently  a  right  to  distrain,  which 

will  pass  to  his  executors  (/<) ;  and  so  has  a  tenant 
from  year  to  year,  sub-letting  from  year  to  year  (i).  A 
termor  after  liis  term  has  expired,  and  a  demand  of  posses- 
sion by  the  lessor,  cannot  distrain  upon  his  subtenant  con- 
tinuing in  possession  (A:).  If  a  termor  surrender  his  term 
to  the  reversioner,  reserving  to  himself  a  rent,  but  without 
an  express  power  of  distress,  he  cannot  distrain  for  the  rent 
when  in  arrear,  because  he  has  no  reversion.  But  if  a  sur- 
render be  made,  and  a  new  lease  granted,  the  right  to  dis- 
train on  previous  sul>tenants  is  preserved  by  the  4  Geo.  2, 
c.  28,  s.  6,  and  8  &  9  Vict.  c.  106,  s.  9  (/)• 

Joint  tenants.  —  (^ne  joint  tenant  may  distrain  alone  ;  but 
he  must  avow  or  justify  such  distress  in  his  own  right,  and 
as  bailiff  of  the  others  (m).  A  distress  for  rent  may  be 
authorized  by  one  of  several  joint  tenants  (ii).  He  may  sign 
a  distress  warrant,  and  thereby  appoint  a  bailiff  to  distrain 
for  rent  due  to  all,  if  the  others  do  not  forbid  him ;  and  if 
when  applied  to  they  merely  decline  to  act,  that  will  not 
prevent  him  from  proceeding  (o).  If  some  of  the  joint  ten- 
ants assign  their  shares,  the  right  of  all  the  joint  tenants  to 

(/)  Smith  V.  Day,  2  M.  &  W.  G84 ;  (/)  Curtis  v.  Wheeler,  Moo.  &  M. 

Blauhfiml,  app.,  Cole,  rcsp.,  5  C.  B.,  403;  Oxley   v.   James,  13   M.  &  W. 

N.  S.  514  ;  Doe  r.  Walker,  5  B.  &  C.  209. 

111.  (k)  Burne  r.  Richardson,  4  Taunt. 

(if) V.  Cooper,  2  Wilson,  .375  ;  720. 

Smith   I-.   Maplebaek,   1   T.  K.   441  ;  (/)  Ante,  Chap.  IX.,  Sect.  5. 

Talentinc  v.  Denton,  Cro.  Jac.  Ill  ;  (w)  Pullen  v.  Palmer,  3  Salk.  207  ; 

I'armenter  v.  Webber,  8  Taunt.  503;  Carth.  328;  5  Mod.  73. 

Preece  v.  Corric.  5  Bing.  24  ;  Pascoe  (h)  Per  Jervis,  C.  J.,  in  Morjran  r. 

V.  Pascoe,  3  Bing.  N.  C.  808;  BuUen,  Parry,  17  C.  B.  342. 

54.  (())  Robinson  i'.  Hoffman,  4  Bing. 

(A)  Wade   V.   Marsh,   Utch.    211;  502  ;  3  C  &  P.  234. 
Bulkn,  54. 

6()4 


Ch.  XI.  S.  4.]  WHO   MAY   DISTRAIN.  *423 

distrain  for  previous  arrears  of  rent  is  at  an  end  (p).  A 
surviving  joint  tenant  may  distrain  for  arrears  accrued  in 
the  lifetime  of  his  deceased  companion  (^).  Where  two  or 
more  executors  or  other  joint  tenants  demise  to  their  co- 
executor  or  co-tenant  their  shares  at  a  lixed  rent,  it  seems 
they  may  distrain  for  such  rent  when  in  arrear  (r). 

Tenants  in  common.  —  Tenants  in  common  are  obliged  to 
avow  separately  (i-),  and  should  make  several  distresses, 
each  for  his  own  share  (0 ;  thus,  where  land  was  demised 
by  four  persons  (whose  original  title  did  not  appear)  at  one 
entire  rent,  to  be  divided  and  paid  separately  in  equal  por- 
tions ;  and  one  of  the  four  distrained  upon  the  tenant  for 
her  own  share  of  the  rent ;  it  was  held,  that  the  distress  was 
regular,  for  whatever  might  have  been  the  interest  of  the 
landlords  as  between  themselves,  as  between  them  and  the 
terre-tenant  they  were  tenants  in  common,  and  entitled  each 
to  a  separate  distress  (u).  It  seems  they  may  all  join  in  one 
distress;  but  in  justifying  such  distress  they  must  avow  or 
justify  separately  for  their  respective  shares  (a;).  It  has 
been  held  that  the  survivor  of  two  tenants  in  com- 
mon may  sue  in  covenant  for  *  the  whole  rent  due  [*423] 
upon  a  lease  made  by  them,  although  the  reservation 
was  to  both  according  to  their  respective  interests  (?/).  If  a 
rent-charge  has  been  divided  by  will,  or  by  deed  operating 
under  the  Statute  of  Uses,  amongst  several  persons  as  ten- 
ants in  common,  there  may  be  several  distresses  without 
attornment  (2).  After  a  devise  of  a  reversion  to  two  tenants 
in  common,  one  of  them  may  distrain  for  his  share  of  the 
rent  upon  the  lessee  of  the  devisor,  where  such  lessee  has 
paid  the  whole  rent  to  the  other  tenant  in  common  after 
notice  not  so  to  pay  (a).     Where  a  tenant  in  common  de- 

(p)  Staveley  v.  Alcock,  16   Q.  B.  /'/)  Wallace  v.  M'Laren,  1  Man.  & 

636  ;  20  L.  J.,  Q.  B.  320.  R.*516  ;  Thompson  v.  Hakewili,  19  C, 

(7)  Bullen,  47  ;  2  Roll.  Abr.  86.  B.,  N.  S.  713 ;  35  L.  J.,  C.  P.  18. 

(r)  Cowper  v.  Fletcher,  6  B.  &  S.  (z)  Rivis  v.  Watson,  5  M.   &  W. 

464;  34  L.  J.,  Q.  B.  187.  255. 

(s)  PuUen  V.  Palmer,  3  Salk.  207.  (a)  Harrison   v.   Barnby,    5   T.  R. 

(0  Bradby,  41.  246;  Powis  r.  Smith,  5  B.  &  A.  850; 

(m)  Whitley  v.  Roberts,  M'Clel.  &  Doe  d.  Pritchitt  v.  Mitchell,  1  Bred, 

Y.  107.  &  B.  11 ;  BuHen,  49, 

(x)  Bullen,  48. 

665 


*423  DISTRESS    FOP.   RENT.  [Ch.  XI.  S.  4. 

mises  his  share  to  his  co-tenant,  he  may  distrain  for  the  rent 
reserved  (5). 

Heirs  in  gavelkind.  —  One  of  several  coheirs  in  gavelkind 
may  distrain  for  rent  due  to  himself  and  his  coheirs  without 
express  authority  from  them  (e). 

Coparceners.  —  Coparceners  are  considered  in  law  but  as 
one  heir,  and  therefore  before  partition  must  join  in  making 
a  distress  (t?)  :  or  one  coparcener  may  distrain  alone  for  the 
whole  rent,  each  having  an  estate  in  every  part  of  it  (e). 
No  consent  from  the  other  coparceners  need  be  previously 
obtained  in  order  to  authorize  one  coparcener  to  distrain 
alone,  or  alone  to  appoint  a  bailiff  to  distrain  for  the  whole 
rent  (e).  In  the  event  of  a  replevin,  however,  tlie  avowry 
must  be,  according  to  the  nature  of  the  estate,  joint ;  or  the 
party  distraining  alone  must  avow  in  her  own  right  for  her 
own  share,  and  make  cognizance  as  bailiff  of  the  other  copar- 
ceners (e).  After  a  partition,  coparceners  may  of  common 
right  make  several  distresses,  and  their  grantees  also  liave 
the  same  power  (/).  And  even  a  rent-charge,  although  en- 
tire in  its  nature,  may  be  divided  between  coparceners ;  and 
thus  by  act  of  law  the  tenant  of  the  land  may  become  sub- 
ject to  several  distresses  (^).  But  coparceners  after  they 
have  parted  with  their  estate  cannot  distrain  for  previous 
arrears  (h). 

Tenants  in  tail.  —  Although  a  tenant  in  tail  make  leases 
not  conformable  to  any  enabling  act  (i),  such  leases  are  good 
as  against  himself,  and  therefore  as  a  reversioner  he  may  dis- 
train even  at  common  law  for  the  rent  reserved  thereby  (Jc). 

Tenants  by  the  curtesy.  —  A  tenant  by  the  curtesy  may 
distrain    of    common    right  (/) ;    but   a   husband   unless   he 

{h)  Bronnam  v.  Hood,  4  Jr.  Com.  (fj)  Co.  Lit.  164  b;  Hivis  r.  Watson, 

L.  R.  3;32,  Q.  B.  5  M.  &  W.  255. 

(c)  Lcifjli  u.  Shepherd,  2  Bro J.  &B.  (A)  Dixon    v.    Harrison,   Vaushan, 

465;  Biiilon,  46.  52;   and  see  Staveley  v.  Alcock,  16 

(f/)  Stcdman  v.  Papc,  1   Salk.  390;  Q.  B.  636. 

Stedman  c  Bates,  1  Ld.  Raym.  64.  (/)  Ante,  3. 

(e)  Lei^rii  „.  Shepherd,  2  Brod.  &  [k)  1    Swanst.   346,  note ;   Bullen, 

B.  465;  Bullen,  44.  50. 

(/)  Butler  and  Baker's  case,  3  Co.  (/)  Bradby,  40 ;  Bullen,  51. 
R.   22   h;    Co.   Lit.    164   b;    169   b; 
Bullen,  45. 

CG6 


Cii.  XI.  S.  4]  WHO   MAY  DISTRAIN.  *424 

be  tenant  by  the  curtesy,  cannot  distrain  for  rent 

*  which  becomes  due   after  the  death    of  his    wife   [*424] 

under  leases  of  her  freehold  made  by  both  of  them, 

or  by  him  on  her  behalf  (m). 

Tenants  in  dower.  —  A  widow  to  whom  dowry  has  been 
duly  assigned  by  metes  and  bounds,  may  distrain  for  the 
subsequent  rent  of  that  part  (w).  If  a  rent  l)e  assigned  to  a 
widow  instead  of  her  dower,  she  may  distrain  for  it,  although 
she  has  no  reversion,  and  the  rent  was  granted  without  deed; 
for  such  rent  is  in  its  nature  distrainable  of  common  right  (o). 

Tenants  under  execution.  —  An  entry  under  an  execution, 
either  by  elegit,  statute  merchant  or  statute  staple,  gives  so 
far  an  estate  in  the  rent  of  hind  as  to  'confer  the  power  of 
distress,  although  there  is  but  an  uncertain  interest  in*  the 
reversion  (p),  and  a  tenant  by  elegit  may  distrain  without 
attornment  (^). 

Lords  of  manors  and  commoners.  —  A  lord  of  a  manor  may 
of  common  right  distrain  for  his  copyhold  rents  (r),  and  by 
4  Geo.  2,  c.  28,  s.  5,  he  has  the  same  right  as  if  the  rent  was 
reserved  upon  lease.  But  copyhold  rents  are  not  within  32 
Hen.  8,  c.  37,  giving  a  remedy  by  distress  for  arrears  of  rent 
to  executors  and  administrators  (s).  Where  two  commoners 
agreed,  to  their  mutual  advantage,  not  to  exercise  their 
respective  rights  for  a  certain  term ;  it  was  held  that  one 
might  distrain  the  other's  cattle  damage  feasant  during  that 
time  (0-  In  case  of  a  common  absolutely  stinted  in  point 
of  number,  one  commoner  may  distrain  the  supernumerary 
cattle  of  another;  but  not  if  an  admeasurement  be  neces- 
sary ;  or  where  the  stint  has  relation  to  the  quantity  of  com- 
mon land ;  and  a  commoner  cannot  distrain  where  the  owner 
of  cattle  has  any  colour  of  right  to  j)ut  them  on  the  land,  as 
that  would  be  taking  to  himself  jurisdiction  as  to  the  compe- 

(m)  Ante,  42.  (,;)  Lloyd  v.  Davies,  2  Exch.  103. 

(n)  Co.   Lit.   29   a,   34   b,    144    b ;  (;•)  Laujiber    v.    Humphrey,    Cro. 

Stoughton    V.   Leigh,   1    Taunt.  410;  Eliz.  524 ;  Bullen,  57,  58. 
Bullen,  52.  (s)  Appleton  i:  Doily,  Yelv.  1.35; 

(o)  Co.  Lit.  34  b,  169  b  ;   BuIIcn,  Bull.  N.  P.  57  ;  Sands  v.  Hempson,  2 

31,  52;  Gilb.  Rents,  20.  Leon.  142. 

(p)  Bro.   Abr.   Distresses,  pi.  72;  (<)  Whiteman  v.  King,  2  H.  Blac. 

Cubitt's  case,  4  Co.  R.  7.  4. 

667 


*425  DISTRESS   FOR  RENT.  [Ch.  XI.  S.  4. 

tency  of  such  right ;  but  if  there  be  no  pretence  or  shadow 
of  right,  as  in  the  case  of  tlie  cattle  of  a  stranger,  the  com- 
moner may  always  resort  to  distress  (w). 

Mortgagees.  —  A  mortgagee,  after  giving  notice  to  the  ten- 
ant in  possession  under  a  lease  or  tenancy  created  prior  to 
the  mortgage,  may  distrain  for  the  rent  in  arrear  and  unpaid 
at  the  time  of  the  notice,  as  well  as  for  rent  which  may 
accrue  after  such  notice,  although  he  was  not  in  the  actual 
seisin  of  the  premises,  nor  in  the  receipt  of  the  rents  and 
profits  thereof  at  the  time  the  rent  became  due  (2:)  ;  but  he 
may  not  distrain  for  rent  due  upon  a  lease  made  by  the  mort- 
gagor alone  after  the  mortgage,  unless  he  has  accepted 
[*425]  rent  from  the  *  tenant,'or  has  given  him  notice  to  pay 
rent,  and  the  tenant  has  acquiesced,  so  as  to  create  a 
new  tenancy  (express  or  implied)  as  between  the  mortgagee 
and  the  tenant  (^).  Payment  of  rent  by  the  tenant  under  a 
distress  does  not  constitute  an  acquiescence  by  relation  back 
to  the  period  when  notice  was  given  (z).  But  the  tenant 
may  expressly  attorn  to  the  mortgagee  as  from  a  previous 
day,  at  a  specified  rent,  which  may  accordingly  be  distrained 
for  (a). 

A  mortgagee  may  distrain  on  the  mortgagor  for  rent  re- 
served upon  an  attornment  in  the  mortgage  deed,  whether 
such  rent  be  payable  in  advance  or  not,  and  even  where  the 
mortgagee  has  not  executed  the  deed,  if  the  tenancy  be  at 
will  only,  or  for  a  term  not  exceeding  three  years  (J)). 

Mortgagors.  —  A  mortgagor  may  distrain,  under  a  lease 
grante4  by  himself  after  the*  mortgage  (c)  :  but  he  cannot 
distrain  for  arrears  of  rent  due  on  a  lease  made  before  the 
mortgage  ;  for  by  the  act  of  mortgaging  the  privity  of  estate 
is  destroyed  (d).     But  if  a  lessor,  after  mortgaging  his  re- 


(»)  TTall  V.  Harding,  4  Burr.  2432  ;  {£)  Evans  v.  Elliott,  9  A.  &  E.  342  ; 

1  W.  Bliic.  673.  Brown  v.  Storey,  1  M.  &  G.  117. 

(x)  Moss    V.    Gailimore,    1     Doug.  («)  Gladnian   ;•.  riunior,   15  L.  J., 

279;  1   Smith  L.  C.  (529   (7th  ed.)  ;  Q.B.  W);  10  Jur,  109. 
Pope  V.  Biggs,  9  B.  &  C.  245.  (h)  Morton  v.  Woods,  T..  11.,  3  Q. 

(.</)  Rogers  v.    Humphreys,  4  A.  &  B.  <i58  ;  37  L.  J.,  Q.  B.  242. 
E.  299;    rartington    v.  Woodcock,  0  (f)  Bradl)y,99;  Alcliorne  r.  (lonime, 

A.  &  E.  G90,  ante,  50.  2  Bing.  54. 

(</)  Bullen,  74. 

GG8 


Cii.  XI.  S.  4]  WHO   MAY   DISTRATN.  *426 

version,  is  permitted  by  the  mortgagee  to  continue  in  the 
receipt  of  the  rents  incident  to  that  reversion,  he,  during 
such  permission,  is  praesumptione  juris  authorized,  if  it  should 
become  necessary,  to  realize  the  rent  by  distress,  and  to  dis- 
train for  it  in  the  mortgagee's  name,  as  his  bailiff :  and  he 
may  so  justify  the  distress,  although  it  was  taken  in  his  own 
name  as  for  the  rent  due  to  himself  (e).  So  where  a  mort- 
gage by  demise  has  been  paid  off  by  the  assignee  of  the 
equity  of  redemption,  who  takes  from  the  mortgagee  an 
undertaking  to  execute  a  transfer  of  the  mortgage,  tliere  is 
an  implied  authority  to  the  assignee  of  the  equity  of  redemp- 
tion to  distrain  in  the  name  of  the  mortgagee  C/). 

Annuitants.  —  A  mere  annuity  may  be  distrained  for  Avhere 
the  deed  creating  it  expressly  confers  a  power  to  distrain  Qg') ; 
but  not  generally  in  other  cases  (A).  If  an  annuity  be 
granted  out  of  an  estate,  and  the  grantor,  to  secure  the  pay- 
ment, vests  the  estate  in  trustees  for  a  term,  to  the  use  of 
the  annuitant,  and  subject  thereto  continues  in  possession, 
the  annuitant  may  distrain  for  the  arrears  ;  for  supposing  the 
term  to  have  given  him  the  reversion,  the  grantor  is  to 
be  considered  as  his  subtenant,  upon  whom  he  might  as  re- 
versioner distrain  at  common  law  (i). 

Guardians.  —  Such  guardians  as  may  make  leases 
of  the  infant's  lands  in  their  *  own  names  "(A-),  may,   [*426] 
during  the  minority  of  their  wards,  distrain  in  their 
own  names  for  arrears  of  rent  reserved  by  such  leases  (V). 

(1))  Persons  not  having  the  Reversion. 

On  exchanges  and  partitions.  —  Although  a  person  who  has 
never  had  the  reversion,  or  has  parted  with  it,  cannot  gen- 
erally distrain  (w),  yet  in  some  particular  cases  the  power  of 


(c)  Trent  v.  Hunt,  9  Exch.  14.  (h)  See  Cliap.  I.,  Sect.  20. 

(/)  Snell  V.  Finch,  13  C.  B.,  N.  S.  (/)  Shopland  v.  Ryoler,   Cro.   Jac. 

651 ;  32  L.  J.,  C.  P.  117.  55,'  98;  Bedell  v.  Constable,  Vaugh. 

{g)  Chapman  v.  Beecham,  3  Q.  B.  179;  Bullen,  72. 

723.  (m)  Smith  v.  Mapleback,  1  T.  R. 

{h)  Co.  Lit.  32  a ;   144  b  ;  Bullen,  441 ;  Parmenter  v.  Webber,  8  Taunt. 

51,  note  (9).  593;   Preece   i\   Corrie,  5   Bing.  24; 

(0  Fairfax    v.    Gray,   2   W.    Blac.  Thorn  v.  Woollcombe,  3  B.  &  Adol. 
1326. 


586;  Pascoe  v.  Pascoe,  3  Bing.  N.  C. 


669 


*427  DISTRESS   FOR   RENT.  [Cn.  XI.  S.  4. 

distress  is  held  to  be  at  commoa  right,  even  without  the 
reversion.  Thus  a  rent  granted  upon  an  exchange  may  be  dis- 
trained for  without  any  reversion  or  express  power  (n),  and  so 
may  a  rent  granted  by  one  coparcener  to  another  for  equalitj^ 
of  partition  (o).  In  such  cases  the  grantee  of  the  rent  ma}^ 
distrain  for  it  without  any  express  power  in  the  deed :  but 
if  such  grantee  assign  over,  neither  he  nor  tlie  assignee 
can  distrain  for  arrears  due  before  the  assignment  (jt>). 

Jointures.  —  A  woman  endowed  of  a  rent  by  way  of  joint- 
ure in  lieu  of  dower  may  distrain  for  it,  whether  it  be  rent- 
service,  rent-charge  or  rent-seek,  with  or  without  deed  (^). 
Although  she  have  not  the  reversion,  she  may  distrain  for 
such  rent  of  common  right  (r). 

The  grantee  or  owner  of  a  rent-charge,  although  he  has  no 
reversion,  may  distrain  for  the  arrears  by  virtue  of  the  ex- 
press power  in  the  deed  or  will  creating  the  rent-charge  (s). 
So  may  the  grantee  or  owner  of  a  rent-seek,  by  virtue  of  4 
Geo.  2,  c.  28^  s.  5  (0- 

Lords  of  manors.  —  The  rents  paid  by  copyholders,  as  ten- 
ants of  the  manor,  to  the  lord,  have  always  been  considered 
as  rent-service,  fealty  being  necessarily  incident  to  this  spe- 
cies of  tenure,  and  therefore  they  are  distrainable  of  com- 
mon right  («). 

(c)   Tenants  pur  autre    Vie. 

By  32  Hen.  8,  c.  37,  s.  4,  tenants  pur  autre  vie  may  sue  or 
distrain  for  arrears  due  during  the  life,  and  unpaid  after  the 
death  of  the  cestui  (pie  vie,  in  like  manner  as  at  common 
law  they  might  have  done  during  his  life. 

[*427]  *  (d)  Executors  and  Administrators. 

By  the  common  law,  executors  or  administrators  could  not 
distrain  for  arrears  incurred  in  the  lifetime  of  the  owner  of  a 

80«;  Langfonl  v.  Sclmes,  3  Kay  &  J.  {]>)  Ante,  Chap.  VII. 

220.  (7)  Coll   V.    Bishop    of    Coventry, 

(n)  Lit.  ss.  2G2,  253;  Co.  Lit.  100  Iloh.  140,  153. 

a;  Id.  153  a,  note  (1)  ;  Rullcn,  31.  {r)  Co.  l>it.  10!)  b  ;  Id.  34  b;  Gilb. 

{(>)  Lit.  88.  252,  263;   Co.  Lit.  153  Rents,  20;  BuUen,  31,  52. 

a,  note  (1);    Id.  109  b;   Butlor  and  (,s)  Anlc,AV2.. 

Baker's  case,  3  Co.  U.  22  h;  Stukcley  (0  Ante,  412. 

r.  Butler,  Ilob.  172;  Cilb.  Rents,  10;  {u)  Laugher    v.    Humphrey,    Cro. 

Bullen,  31,  45.  Eliz.  524  ;  mite,  348. 

670 


Cn.  XI.  S.  4]  WHO   MAY   DISTRAIN.  *427 

rent  (x)  ;  but  by  32  Hen.  8,  c.  37,  s.  1,  the  executors  and 
administrators  of  tenants  in  fee,  fee-tail,  or  for  term  of  life, 
of  rent-services,  rent-charges,  rent-seek  and  fee-farm  rents, 
were  empowered  to  distrain  upon  the  lands  chargeable  with 
the  payment  thereof,  so  long  as  such  lands  remain  in  the 
possession  of  the  tenant  who  ought  to  have  paid  them,  or  of 
any  other  person  claiming  under  him  by  purchase,  gift  or 
descent.  This  statute  has  been  considered  a  remedial  law, 
extending  to  all  executors  of  tenants  for  life,  as  well  those 
who  before  the  statute  were  entitled  to  an  action  of  debt,  as 
those  who  had  no  remedy  whatever  (t/).  By  3  &  4  Will.  4, 
c.  42,  s.  37,  "  the  executors  or  administrators  of  ani/  lessor  or 
landlord  may  distrain  upon  the  lands  demised  for  any  term^ 
or  at  will,  for  the  ari'ears  of  rent  due  to  such  lessor  or  land- 
lord in  his  lifetime,  in  like  manner  as  such  lessor  or  landlord 
might  have  done  in  his  lifetime ; "  and  by  sect.  38,  "•  such 
arrears  may  be  distrained  for  after  the  end  or  determination 
of  such  term  or  lease  at  will,  in  the  same  manner  as  if  such 
term  or  lease  had  not  been  ended  or  determined ;  provided 
that  such  distress  be  made  within  the  space  of  six  calendar 
months  after  the  determination  of  such  term  or  lease,  and 
during  the  continuance  of  the  possession  of  the  tenant  from 
whom  such  arrears  became  due ;  provided  also,  that  all  and 
every  the  powers  and  provisions  in  the  several  statutes  made 
relating  to  distresses  for  rent  shall  be  applicable  to  the  dis- 
tresses so  made."  Where  the  lessee  of  lands  dies  before  the 
expiration  of  the  term,  and  his  administrator  continues  in 
possession  during  the  remainder  and  after  the  expiration  of 
it,  a  distress  may  be  taken  for  all  the  arrears  (2;),  not  exceed- 
ing six  years  (a).  But  it  is  otherwise  where  a  mere  tenant 
at  will  dies  and  his  widow  continues  in  possession  (J). 
Where  several  executors  demise  to  their  co-executor  at  a 
fixed  rent,  it  seems  they  may  distrain  for  such  rent  when  in 
arrear  (c).     An   executor  may  distrain  before  probate,  and 

(x)  Co.  Lit.  162  a.  (a)  3  &  4  Will.  4,  c.  42,  s.  42  ;  Cole 

(,y)  Hool  V.  Bell,  1  Ld.  Raym.  172 ;       Ejec.  27. 
3  Salk.  13'6.  (/;)  Turner   v.   Barnes,  2   B.   &  S. 

(2)  Braithwaite  v.  Cooksey,   1   H.       435 ;  31  L.  J.,  Q.  B.  170. 
Blac.  465.  (c)  Cowper  v.  Fletcher,  6  B.  &  S. 

464;  34  L.  J.,  Q.  B.  187. 

671 


*428  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  4. 

may  ratify  a  distress  made  by  a  bailiff  in  the  name  of  the 
testator  immediately  after  his  death  (d'). 

(e)  Husbands. 

Husbands  in  right  of  wives.  —  Arrears  of  rent,  arising  out 
of  land  in  which  the  wife  has  only  a  chattel  interest, 
whether  accruing  before  or  during  the  marriage, 
[*428]  *  might  always  by  the  common  law  be  distrained  for 
by  the  husband;  and  by  32  Hen.  8,  c.  37,  s.  3,  the 
husband  was  allowed  to  distrain  for  arrears  accrued  before 
or  during  the  marria,ge  in  respect  of  the  wife's  freeholds  (e), 
but  not  for  subsequently  accruing  rent,  unless  he  were  ten- 
ant by  the  curtesy  (/).  After  the  death  of  the  wife,  the 
husband  might  distrain  alone  for  all  the  rent  due  in  right  of 
the  wife  in  her  lifetime,  even  if  it  accrued  to  her  in  autre 
droit,  as  executrix  (^). 

Though  the  wife  might  generally  join  with  her  husband, 
in  no  case  whatever  could  she  before  the  Married  Women's 
Property  Act,  distrain  alone  (Ji). 

(f)    Corporations. 

Under  implied  tenancies  from  year  to  year.  —  If  a  lease  be 
made  by  or  on  behalf  of  a  corporation  aggregate,  not  under 
their  common  seal,  although  it  be  invalid  as  a  lease,  yet  if 
the  tenant  hold  under  it  and  pay  part  of  the  agreed  rent  to 
the  corporation  or  their  bailiff  or  agent,  that  is  sufficient 
to  create  a  tenancy  from  year  to  year  at  a  fixed  rent,  and  to 
entitle  the  corporation  to  distrain  for  such  rent  (i). 

By  4  Geo.  2,  c.  28,  s.  5  (A-),  bodies  politic  and  corporate 
are  placed  on  the  same  footing  as  otlier  persons  with  respect 
to  the  recovery  of  rent-seek,  chief  rents,  and  rents  of  assize. 

Corporations  sole  may  sue  or  distrain  in  like  manner  as 
otlier  lessors. 

Churchwardens    and  overseers.  —  Any  one  of    the    church- 

(<l)  Whitehead  v.  Taylor,  10  A.  &  (r/)  Osborne  r.Wickenrlen,2Saiind. 

K.  210.  195;   Ankerstein   v.  Clarke.  4  T.  K. 

{e)  Bullen,  5G,  57  ;  Ogncl's  case,  4  017  ;  Parry  v.  Ilindle,  2  Taynf.  181. 

Co.  11.  51  a.  (/,)  Bullen,  54. 

(/)  Howe  i;.  Scarrott,  4  II.  &  N.  0)  Wood  v.  Tate,  2  B.  &  P.,  New 

72;5 ;  28  L.  J.,  Ex.  325  ;  ante,  Cliap.  R.  247. 

VII.,  Sect.  8.  (A )  ^«/<',  370. 

G72 


Cii.  XI.  S.  4.]  WHO   MAY   DISTRAIN.  *429 

wardens  and  overseers  of  a  parish  holding  property  under  59 
Geo.  3,  c.  12  (I),  mnj,  on  behalf  of  himself  and  the  others, 
distrain  for  rent  due  in  respect  of  the  property  Qm'). 

(g)  P&t'sons  having  special  Powers. 

Rent-charge.  —  It  is  of  the  very  essence  of  a  rent-charge 
that  a  power  of  distress  should  be  given  by  the  deed  or  will 
creating  the  charge  (w),  and  a  distress  may  be  made  accord- 
ingly when  any  of  such  rent  is  in  arrear.  So  the  assignee  of 
a  rent-charge  may  distrain  for  arrears  thereof  which  become 
due  after  the  assignment  (o),  but  not  for  previous  arrears  (^). 

Rent-seek.  —  The  grantor  or  owner  of  a  rent-seek  may  dis- 
train for  arrears  by  virtue  of  4  Geo.  2,  c.  28,  s.  5  (5').  So  a 
devisee  may  distrain  for  rent  devised  to  him  out  of 
land,  whether  the  land  be  expressly  charged  *  with  [*429] 
a  distress  or  not  (r).  If  a  lessee  for  years  assign  his 
term,  reserving  a  rent  with  no  clause  of  distress,  he  cannot 
distrain  for  the  rent,  either  by  the  common  law  or  by  the 
statute  (s).  A  person  who  lias  possession  of  land,  though  he 
has  not  the  legal  estate,  may  by  agreement  grant  another  a 
power  of  distress  Q').  A  covenant  that  the  grantor  of  a  rent 
should  not  replevy  the  goods  distrained  until  the  rent  be 
paid,  is  void  (?*).  Where  by  an  inclosure  act  a  yearly  corn- 
rent  was  substituted  in  lieu  of  tithes,  and  a  power  of  distress 
was  given  for  the  recovery  thereof ;  it  was  held,  that  the 
goods  of  a  tenant,  coming  in  under  the  owner  of  land  which 
had  remained  for  several  years  untenanted,  and  wholly  un- 
profitable, were  liable  to  be  distrained  for  such  corn-rent  in 
arrear  (a-). 

(l)Ante,?A.  (s) v.  Cooper,    2    Wils.    375 

(vi)  Gouldsworth  v.  Knights,  11  M.  Parmenter  v.  Webber,  8  Taunt.  593 

&  W.  337.  Smith   v.  Mapleback,  1   T.    R.   441 

(n)  Ante,  412.  Preece   r.  Corrie,  5  Bing.  24 ;  Pascoe 

(o)  Maund's  case,  7  Co.  R.  28.  v.  Pascoe,  3  Bing.  N.  C.  898;  Lang- 

(;))  Brown  ??.  Metropolitan  Coun-  ford  y.  Selmes,  3  Kay  &  J.  220 ;  3  Jur., 

ties  Life  Insurance  Society,  1  E.  &  E.  TST.  S.  859. 

832;  28  L.  J.,  Q.  B.  236.  (t)  Chapman  v.  Beecham,  3  Q.  B. 

(7)  Ante,  376.  723;  Pollitt  v.  Forrest,  11  Q.  B.  961. 

(r)  Siiep.  Touch.  429 ;  Buttery  v.  (u)  1  Inst.  145  b. 

Robinson,   3   Bing.   392 ;    Sallory   v.  (x)  Nevvling  v.  Pearce,  1  B.  &  C. 

Leaver,  L.  R.,  9  Eq.  22.  437 ;  Bendyslie  v.  Pearce,  4  Moo.  99. 

673 


'430  DISTRESS  FOR   KENT.  [Ch.  XI.  S.  4. 


(h)  Receivers  and  Agents. 

Private  Receiver.  —  A  private  receiver  cannot  generally 
distrain  without  an  express  power  for  that  purpose  (^).  In 
Jolly  V.  Arbuthnot,  by  a  receivership  deed  executed  con- 
temporaneously with  a  mortgage  in  fee,  which  it  recited,  the 
mortgagor  and  mortgagee  aj^pointed  a  receiver,  and  consti- 
tuted him  their  agent  and  attorney  to  receive  the  rents  of 
the  mortgaged  property,  and  to  use  such  remedies  by  way  of 
entry  and  distress  as  should  be  requisite  for  that  purpose. 
By  the  same  deed  the  mortgagor  attorned  as  tenant  from 
year  to  year  to  the  receiver,  and  there  was  a  proviso  that  if 
default  should  be  made  in  payment  of  the  mortgage  money 
or  interest  at  the  times  appointed,  the  mortgagee  might  enter 
and  avoid  the  tenancy  created  by  the  attornment.  There 
was  also  a  proviso  that  nothing  therein  contained  should  les- 
sen the  rights,  powers  or  remedies  of  the  mortgagee  under 
the  mortgage  (2).  On  the  mortgagor  being  found  bankrupt, 
it  was  held,  that  the  relation  of  landlord  and  tenant  had  been 
created  between  the  receiver  and  mortgagor  by  the  receiver- 
ship deed,  and  that  the  receiver  was  entitled  to  distrain,  and 
take  the  goods  which  had  belonged  to  the  mortgagor  on  the 
mortgaged  premises  (a). 

Receivers  appointed  by  order  of  court.  —  Receivers  ap- 
pointed by  the  High  Court  have  a  power,  where  they  con- 
sider it  necessary,  to  distrain,  and  need  not  apply  first  to  the 
Court  for  a  particular  order  for  that  purpose  (ft), 
[*430]  because  as  the  *  Court  never  makes  an  immediate 
order,  but  appoints  a  future  day  for  a  tenant  to  pay, 
it  might  be  an  injury  to  the  estate  to  wait  till  that  time,  as  it 
would  give  the  tenant  an  opportunity  to  convey  his  goods  off 
the  premises  in  tlie  meantime.  If,  however,  tlicre  is  any 
doubt  who  has  the  legal  right  to  the  rent,  then  the  receiver 

(;/)  Eullcn,  72;    Wjird  v.  Slicw,  9  («)  Jolly  v.  Arbuthnot,  4  De  G.  & 

Jiiif,'.  008 ;  (»  Kxc'li.  11).  J.  '2'J4  ;  28  L.  J.,  Cli.  547. 

(z)  The  real  ol)jcct  of  tliis  was  to  (/>)   Pitt  v.  Snowden,  3   Atk.    7f)0; 

enable    the    mortfiapee  to  obtain   all  Dancer  v.  Hastin^fs,  4  Hinji.  2;  IJen- 

the    advantages,    without    fiubjocting  nctt  y.  Robins,  5  C.  &  P.  ;i7!);  Bran- 

liirnseif  to  the  liabilities,  of  a  niort-  don  v.  Brandon,  5  Madd.  473. 
gagee  in  jwssession. 

G74 


Ch.  XI.  S.  5.]     DISTRESS   ON   AGRICULTURAL   HOLDINGS.         *430 

should  make  an  application  to  that  Court  for  an  order,  as  he 
must  distrain  in  the  name  of  the  person  who  has  that 
right  (c)  ;  unless  indeed  the  tenant  has  attorned  for  him,  and 
so  created  a  tenancy  as  between  them  (c^),  in  which  case  he 
should  of  course  distrain  in  his  own  name  (e). 

Agents.  —  An  authority  to  tenants  to  pay  rent  to  a  third 
person,  whose  receipt  shall  be  a  discharge,  does  not  entitle 
that  person  to  distrain,  although  he  receives  the  rents  for  his 
own  benefit  (/).  If  a  person  having  express  or  implied 
authority  to  distrain  for  rent  due  to  another,  says  at  the  time 
that  he  distrains  for  rent  due  to  himself,  he  may  neverthe- 
less justify  as  bailiff  of  the  other  (r/). 

(i)  Sequestrators. 

By  sequestrators.  — By  the  12  &  13  Vict.  c.  67,  a  seques- 
trator is  empowered  to  levy  any  distress  in  his  own  name  for 
the  recovery  of  tithes,  tithe  rent-charge  or  rent,  &c.,  payable 
to  the  incumbent  of  the  sequestrated  benefice.  Sequestrators 
appointed  by  the  High  Court  appear  to  stand  on  the  same 
footing  as  receivers  (A). 


Sect.  5.  —  Distress  on  Agricultural  or  Pastoral  Holding^ 
or  Market  Garden. 

Application  of  Agricultural  Holdings  Act.  —  If  the  Agri- 
cultural Holdings  Act,  1888,  applies,  that  is,  if  the  demised 
premises  be  either  wholly  agricultural  or  wholly  pastoral,  or 
partly  agricultural  and  partly  pastoral,  or  wholly  or  partly 
cultivated  as  a  market  garden,  held  under  a  landlord  for  a 
term  of  years,  or  for  lives,  or  for  lives  and  years,  or  from 
year  to  year,  and  the  tenant  hold  no  employment  under  the 


(c)  Huges  V.  Hugos,  3  Bro.  C.  C.  (e)  Jolly  v.  Arbuthnot,  4  De  G.  & 

87;  1  Ves.  jun.  Kil.  J.  224;  28  L.  J.,  Ch.  547. 

id)   Evans  v.  Mathins,  7    E.  &  B.  {f)   Ward  ?'.  Shew,  9  Bing.  608. 

590,601;  26  L.  J.,Q.  B.  309;    White  (q)  Trent  t-.   Hunt,   9   Exch.   14; 

V.  Smale,  22  Beav.  72;   26  Id.  191;  Sncll  v.  Finch,  13  C.  B.,  N.  S.  651; 

Barton  i-.  Bock,  22  Id.  81.  32  L.  J.,  C.  P.  117; 

(Ji)  ^nfe,  429. 

675 


*431  DISTRESS   FOR    RENT.  [Ch.  XI.  S.  5. 

landlord  («'),  then  the  landlord's  rights  of  distress  are  subject 
to  many  special  limitations  particularly  laid  down  by  sections 

44  to  52  of  the  act. 
[*431]  *  One  year's  arrears  alone  recoverable.  —  First,  it  is 
enacted  by  s.  44  (with  a  saving  for  arrears  existing 
on  the  25th  August,  1883,  which  arrears  are  to  be  recover- 
able up  to  Jan.  1st,  1885,  as  if  the  act  had  not  passed)  that 
the  six  years'  arrears  which  the  landlord  might  otherwise 
have  distrained  for  shall  be  reduced  to  one  year's  arrears, 
the  words  being  that  "  it  shall  not  be  lawful  to  distrain  for 
rent  which  became  due  more  than  one  year  before  the  mak- 
ing of  such  distress ; "  but  a  proviso  recognizes  and  encour- 
ages the  continuance  of  the  very  common  practice  of  defer- 
ring the  collection  of  rents  for  a  quarter  or  half-year.  (See 
p.  455,  post.) 

Exemption  of  agisted  stock,  &c.  —  Secondly,  it  is  enacted 
by  s.  45  that  agricultural  or  other  machinery  on  hire,  and 
live  stock  on  hire  for  breeding  purposes,  are  to  be  absolutely 
exempt  from  distress,  and  that  agisted  cattle,  where  a  fair 
price  is  paid  by  the  owner,  are  to  be  exempted  condition- 
ally, that  is,  in  case  other  sufficient  distrainable  goods 
should  be  on  the  premises,  and  even  when  in  such  case  dis- 
trainable, are  to  be  distrainable  onl};-  for  the  amount  due  to 
the  tenant  from  the  owner  for  their  keep. 

Limitation  of  charges,  &c.  —  Thirdly,  it  is  enacted  by  s.  40 
that  the  charges  upon  a  distress  for  more  than  201.  (which 
charges,  up  to  20?.,  are  limited  by  57  Geo.  3,  c.  93,  and  be- 
yond that  sum  have  no  statutory  limit)  shall  not  exceed  the 
charges  fixed  by  the  second  schedule  to  the  act,  and  by  s.  51 
that  no  person  may  levy  a  distress  as  bailiff  unless  he  be 
appointed  by  a  county  court  judge. 

Appraisement  dispensed  with,  &c.  —  Fourthly,  it  is  enacted  by 
s.  50  tliat  the  a])praisement  before  sale  required  by  2  W.  & 
M.  c.  5,  s.  1,  in  ordinary  cases  shall  not  be  obligatory,  and 
that  goods  distrained  shall,  if  the  tenant  require,  be  removed 
to  an  auction  room  or  some  other  place  selected  by  him,  and 
there  sold. 

(i)  See  88.  54  and  01  of  the  act,  cation  of  the  act  considered,  post,  Cli. 
post,  Appendix  A.,  ami  sec  tlie  appli-       XXI. 

676 


Cii.  XI.  S.  ").]         DISTRESS   ON   AGRICULTURAL   HOLDINGS.     *432 

Fifteen  days  to  replevy.  —  Fifthly,  it  is  enacted  by  s.  51 
that  the  tenant  or  owner  of  goods  distrained  shall  upon  his 
written  request  have  fifteen  days,  instead  of  the  five  days 
limited  by  2  W.  &  Ai.  e.  5,  s.  1  in  ordinary  cases,  within 
wliich  to  replevy  the  goods. 

Determination  of  dispute.  —  Sixthly,  in  regard  to  procedure 
in  case  of  an  alleged  wrongful  distress,  it  is  enacted  by  s.  46 
that  any  dispute  relating  to  a  distress  may  be  heard  and  de- 
termined either  by  a  county  court  or  a  court  of  summaiy 
jurisdiction,  either  of  which  courts,  subject  to  appeal  to 
quarter  sessions  from  a  court  of  summary  jurisdiction,  may 
make  an  order  for  restoration  or  "any  other  order  which 
justice  requires."  These  sections,  which  present  not  a  few 
difficulties,  will  be  examined  in  detail  presently  (A;)  ;  but  the 
question  must  at  once  be  shortly  considered,  whether  or  not 
the  parties  may  by  special  stipulation  "contract  out  of" 
these  sections,  and  legally,  by  preventing  their  taking  effect, 
continue  the  rights  and  liabilities  of  the  ordinary  law. 

*  Upon  the  general  principle  quilihet  potest  renun-  [*432] 
ciare  juri  pro  te  mtrodueto,  there  apjDcars  to  be  some 
reason  for  saying  that  the  tenant  may  give  up  his  rights 
under  these  sections,  and  perhaps  an  additional  reason  is 
supplied  by  the  fact  that  the  rights  under  other  sections  of 
the  act,  those  which  secure  compensation  for  improvements, 
can  by  the  express  provision  of  the  act  in  no  case  be  con- 
tracted out  of.  The  rule  appears  to  be  that  a  statute  can  be 
contracted  out  of  unless  it  be  contrary  to  public  policy  to 
contract  out  of  it  (Z),  or  unless  some  third  person's  rights  be 
damaged  (m).  It  can  hardly  be  said  to  be  contrary  to  public 
policy  to  contract  out  of  these  sections ;  but  considering  the 
extent  to  which  the  rights  of  third  parties  may  be  directly 
affected,  it  is  submitted  on  the  whole  that  they  cannot  be 
contracted  out  of. 


(k)  Post,  Sect.  9,  subsections  (h)  Griffiths  v.  Earl  Dudley,  L.  R.,  9  Q. 

and   (k)  ;    and   Sect.   10,   subsection  B.  D.  357. 
(b).  (m)  See  Broom's  Legal  Maxims, 

(/)  Tliat  the  Employers'  Liability  6th  ed.,  at  p.  668. 
Act   can  be  contracted  out   of,   see 

677 


*433  DISTBESS   FOR   KENT.  [Ch.  XI.  S.  7. 

Sect.  6.  —  Distress  in  Case  of  Bankruptcy. 

Landlord  may  distrain  for  one  year's  rent.  —  The  landlord's 
right  to  distrain  for  rent,  when  the  tenant  becomes  bankrupt, 
which  was  always  recognized  by  bankruptcy  law  (7i),  is  lim- 
ited to  one  year's  rent  due  prior  to  the  adjudication.  If  any 
more  arrears  be  then  due,  they  may  be  proved  for.^ 

No  stay  of  distress.  —  Such  is  the  effect  of  s.  42,  sub-s.  1, 
of  the  Bankruptcy  Act,  1883,  46  &  47  Vict.  c.  52  (re-enact- 
ing without  alteration  s.  34  of  the  Bankruptcy  Act,  1869), 
the  distress  under  which  section  is  not  "a  legal  process" 
within  the  meaning  of  s.  10,  sub-s.  2,  of  the  Bankruptcy  Act, 
so  as  to  be  stayable  under  that  section  (o)  ;  and  notwith- 
standing the  possession  of  a  receive,  may  be  begun,  con- 
tinued, and  ended  without  any  leave  from  any  Court  what- 
ever (^:>). 

The  cases  upon  this  subject  are  more  fully  given  and  con- 
sidered in  connection  with  the  general  rights  of  the  parties 
in  case  of  bankruptcy  (ante,  Ch.  VII.  Sect.  11,  subs,  (e), 
p.  282). 

Sect.  7.  —  Distress  iqjon  Company  in  Liquidation. 

Restriction  of  right.  —  Distress    upon    a   joint   stock    com- 
pany's  goods   is   restricted  by  the  Joint  Stock  Companies' 
Acts,  and  is  not  affected  by  the  10th  section  of  the  Judica- 
ture Act,  1875,  which  imports   certain   bankruptcy 
[*433]  rules    *  into    winding-up  (7).      By  sect.    87    of   the 
Joint  Stock  Companies'  Act,  1862  (25  &  26  Vict.  c. 

(n)    Goods   in    the    custody  of    a  (;>)  Till,  Ex  parte,  Mayhew,  In  re, 

messenger   in    bankruptcy   were  not  L.  R.,  10  Eq.  97  ;  42  L.  J.,  Bank.  84; 

pxenijit    from    distress,    as   being  in  21  W.  R.  574. 

tlie   custody  of    the    law.    Briggs   v.  (q)  Thomas  v.  Patent  Lionite  Co., 

Sowry,  8  M.  &  W.   720.  L.  U.,  17  Ch.  D.  250;  50  L.  J.,  Ch. 

(o)  Birmingham  Gaslight  Co.,  Ex  544;  44  L.  T.  ;J92;  29  W.  R.  596,  C. 

piirle,   Fanshaw,  In  re,  L.   R.,  11    Eq.  A. 
CI 5;  40  L.J.,  Bank.  62;  24L.T.039; 
19  W.  R.  603. 

1  Order  for  administration  of  decedent  debtor's  estate,  not  followed  by  bank- 
ruptcy, does  not  limit  power  to  distrain  for  rent  then  accrued.  In  re  Fryman's 
Estate,  38  Ch.  D.  468. 

678 


Ch.  XI.  S.  7.]  DISTRESS    UPON   COMPANY.  *433 

89),  it  is  enacted,  that  "  where  an  order  has  been  made  for 
winding-up  a  company  under  this  act  no  suit,  action,  or 
other  proceeding  shall  be  proceeded  with  or  commenced 
against  the  company  except  with  leave  of  the  court,  and  sub- 
ject to  such  terms  as  the  court  may  impose ; "  and  by  sect. 
163,  that  "  where  any  company  is  being  wound  up  by  the 
court,  any  attachment,  sequestration,  distress,  or  execution 
put  in  force  against  the  estate  or  effects  of  the  company  after 
the  commencement  of  the  winding-up  shall  be  void  to  all 
intents."  These  two  sections  are  to  be  read  together,  and 
the  enactment  of  sect.  163  that  a  distress  shall  be  "  void " 
means  that  it  shall  be  void  unless  leave  be  given  under  sect. 
87  (r). 

Rent  due  before  winding-up  order.  —  It  is  clearly  settled 
that  leave  will  not  be  given  to  distrain  for  rent  accrued  due 
from  the  company  before  the  winding-up  order  (s)  ;  and  that 
the  10th  section  of  the  Judicature  Act,  1875,  which  assimi- 
lates the  rules  in  bankruptcy  to  the  rules  in  winding-up  as 
to  rights  of  secured  creditors  does  not  so  far  assimilate 
them  as  to  allow  the  landlord  to  distrain  for  such  rent  (0- 
For  rent  due  before  the  presentation  of  the  petition  —  to 
which  the  winding-up  order  has  relation  back  (?t)  — -the  land- 
lord must  prove,  with  the  other  creditors,  in  the  winding-up. 

Rent  due  after  winding-up  order.  —  As  to  rent  accrued  due 
after  the  winding-up  order,  "  if  the  company  for  its  own  pur- 
poses, and  with  a  view  to  the  realization  of  the  property  to 
better  advantage,  remains  in  possession  of  the  estate,  which 
the  lessor  is  not  therefore  able  to  obtain  possession  of,  com- 

(r)  Re   Exhall    Coal    Mining    Co.  Roberts  and  Wright,  Ex  parte,  L.  "R., 

(Limited),  33  L.  J.,  Ch.  595;  10  Jur.,  18    Ch.    D.    049;    50   L.   J.   Ch.   738, 

N.  S.  576 ;  4  De  G.,  J.  &  S.  37 ;  13  W.  where  mortgagees  having  a  right  of 

K.  219;    and  see  Eyton  v.  Denbigh,  distress     for    interest    were    refused 

&c.  R.  Co.,  L.  R.,  6  Eq.  14 ;  Rickinan  leave  to  distrain  for  arrears  accrued 

V.  Johns,  Id.  488;  Lundy  Granite  Co.,  before  the  winding-up.    For  exception 

l»  re,  Heaven,  Ex  parte,  L.  R.,  6  Ch.  in  case  where   landlord  not  a  legal 

482  ;  40  L.  J.,  Ch.  588 ;  24  L.  T.  922  ;  creditor,  see  434  (6). 
19  W.  R.  609.  (/)  Coal    Consumers'    Association, 

(s)  Re  Progress  Assurance  Co.,  L.  In  re,  L.  R.,  4  Ch.  D.  625;  Thomas  v. 

R.,  9  Eq.  370 ;  Traders'  North  Stafford-  Patent  Lionite  Co.,  supra. 
shire  R.  Co.,  L.  R.,  19  Eq.  60  ;  Thomas  (u)  South  Kensington  Stores,  In  re, 

V.  Patent  Lionite  Co.,  supra  (7),  and  infra. 
Brown,   Bailej,    and    Dixon,   In    re, 

679 


*434  DISTRESS  FOR   RENT.  [Ch.  XI,  S.  7. 

moil  sense  and  ordinary  justice  require  the  court  to  see  that 
the  landlord  receive  the  full  value  of  his  property  "  (x)  and 
to  give  the  leave  to  distrain ;  nor  is  the  existence  of  a  power 
of  re-entry  in  the  lease  any  reason  for  refusing  such  leave  (i/). 
The  Apportionment  Act,  1870  (2),  may  be  resorted  to  for 
dividing  a  quarter's  rent  into  a  part  which  may  only  be  proved 
for  and  a  part  which  may  be  distrained  for,  and  the 
[*-J:34]  right  to  *  distrain  begins  to  run,  not  from  the  date 
of  the  winding-up  order,  but  from  the  date  of  the 
presentation  of  the  winding-up  petition  (a). 

Landlord  "  stranger  "  to  company.  —  It  has  been  twice  held 
by  the  Court  of  Appeal  (J),  that  the  landlord's  common  law 
right  of  distress  is  not  restricted  by  the  Companies'  Act  in 
cases  where  he  is  a  "  stranger  "  to  the  company  —  that  is,  in 
cases  where  the  company  is  not  his  tenant,  but  the  goods  of 
the  company  are  found  upon  the  premises  of  a  person  who 
is.  These  decisions  proceed  upon  the  ground  that  in  such 
cases  the  landlord  has  no  right  of  proof  in  the  winding-up, 
not  being  a  creditor  of  the  company. 

Review  of  cases.  — All  the  cases  up  to  1882  Avill  be  found 
fully  reviewed  in  Oak  Pits  Colliery  Co.,  In  re  (i^),  in  which 
the  Court  of  Appeal  appears  to  have  laid  down  the  princi- 
ples upon  which  leave  is  given  or  refused  to  the  same  effect 
as  above  stated. 

Further  rights  of  landlord.  —  A  landlord  who  has  demised  a 
mine  to  a  com})any  for  a  term  of  years,  has  a  right,  if,  before 
the  expiration  of  the  term,  the  company  is  ordered  to  be 

(.r)  rer  James,   L.   J.,   in    Lundy  50  L.  J.,  Ch.  440 ;  44  L.  T.  471;  29 

Granite  Co.,  In  re,  L.  R.,  6  Ch.  400,  W.  R.  002,  per  Fry,  J. 
cited  witli  approval  by  Hall,  V.-C,  in  {h)  In   re  Lundy   Granite  Co.,  uhi 

North  Yorksliiro  Iron  Co.,  In  re,  L.  sttpra     (exiiaustivoly     explained     by 

R.,  7  Cli.  D.  004.     See  also  Rilkstone  Jessel,  M.  R  ,  in  Traders'  North  Staf- 

r.  Dodworth  Coal  and  Iron  Co.,  In  re,  fordsiiire  Co.,  In  re,  uhi  supra);  Recent 

Perkins.    Er  parte,  L.  R..  17  Ch.  1).  United  Service  Stores,  In  re,  L.  R.,  8 

\r>S;  r>()  L.  ,T.,  Ch.  444;  44  L.  T.  405  ;  Ch.  D.  (!10. 
29  VV.  R.  484,  per  Fry,  J.  (hh)  Oak  Rita   Colliery  Co.,  In  re, 

(y)  North  Yorkshire  Iron  Co.,  In  Eyton'a  Claim,  L.  R.,  21  Ch.  D.  322  ; 

re,  uhi  supra.  61   L.  .1.,  Ch.  708  ;  47  L.  T.  7  ;  30  W. 

(z)  Ante,  Ch.  X.,  Sect.  0.  R.  759— C.  A.,  in  which  it  was  held 

(a)  South  Kensinpton  Co-operative  that  the  mere  fact  of  a  liquidator  not 

Stores,  In  re,  L.  R.,  17  Ch.   1).  250;  endeavourinfj  to  surrender   was    not 

enough  for  giving  leave  to  distrain. 

680 


Ch.  XI.  S.  8.]  SUBJECT-MATTERS   OF   DISTRESS.  *435 

wound  up,  to  enter  a  claim  against  the  company  in  respect 
of  the  contingent  liability  to  the  future  non-payment  of  rent 
by  the  assignee  of  the  lease  (c).  Where  a  company  who 
were  assignees  of  land  granted  for  a  feu  duty,  came  to  be 
wound  up,  the  grantor  was  held  entitled  to  prove  for  arrears 
of  feu  duties,  and  also  to  enter  a  claim  for  the  capitalized 
value  of  future  feu  duties  (^d). 


Sect.  8.  —  The  Subject-matters  of  Distress. 

(a)   General  Mules  and  Exemptions. 

Distress  is  of  nature  of  a  pledge.  —  A  distress  being  anciently 
considered  merely  as  a  pledge  in  the  hands  of  the  lord  to 
compel  the  tenant  to  perform  the  service  or  duty  required, 
could  not  at  common  law  be  sold ;  but  was  to  be  restored  in 
the  same  plight  to  the  owner,  when  such  service  or  duty  was 
performed ;  and  therefore  nothing  could  be  distrained  unless 
it  could  be  returned  in  specie  and  undamaged  (g), 
and  in  the  same  state  as  when  *  taken  (/).  This  is  [*435] 
why  tenants'  fixtures  and  the  flesh  of  animals  lately 
slaughtered  cannot  be  distrained  (//).  The  right  to  sell  the 
distress  was  first  given  by  2  W.  &  M.  c.  5,  but  that  statute 
did  not,  except  with  respect  to  sheaves  of  corn,  which  were 
not  at  common  law  distrainable,  do  away  with  the  exceptions 
founded  on  the  common  law  rule.  Subsequent  statutes  have 
further  altered  the  law. 

List  of  things  exempted  from  distress.  —  The  present  excep- 
tions, of  which  the  more  important  will  be  considered  in 
detail  presently,  may  here  be  briefly  stated  as  follows  :  — 

Things  absolutely  privileged  — 
Fixtures  (A)  : 

(r)  Re  Haytor  Granite  Co.,  L.  R.,  b  ;  Pitt  v.  Shew,  4  B.  &  A.  207  ;  Darby 

1  Ch.  Ap.  77;  35  L.  J.,  Ch.  154;  Re  v.  Harris,  1  Q.  B.  895. 

London  and  Colonial  Co.,  L.  R.,  5  Eq.  (/)  Simpson    v.    Hartopp,  "Willes, 

661.  515;  1  Smith  L.  C.  439  (7th  ed.). 

(d)  Gartness  Iron  Co.,  In  re,  L.  R.,  ((/)  Morley  r.  Pinconibe,  2  Exch. 
10  Eq.  412;  39  L.  J.,  Ch.  814;  23  L.  101;  Brown  v.  Shevill,  2  A.  &  E.  138. 
T.  389;  18  W.  R.  1103,  per  Bacon,  (h)  Hellawell  v.  Eastwood,  6  Ex. 
V.-C.  295,  and  438,  post. 

(e)  Gilb.  Distr.  34,  48 ;  Co.  Lit.  47 

681 


*435  DISTRESS   FOE   RENT.  [Ch.  XI.  S.  8. 

Animals  ferse  naturae  (e) : 

Goods  delivered  to  a  person  in  the  way  of  liis  trade  (A:) : 

Things  in  actual  use  (Z)  : 

Things  in  the  custody  of  the  law  (m) : 

The  goods  of  an  ambassador  (ji)  : 

The  goods  of  a  lodger  (o)  : 

Frames,  looms,  or  machines  used  in  the  woollen,  cot- 
ton, or  silk  manufactures  (jd)  : 

Gas-meters,  being  the  property  of  a  gaj  company  in- 
corporated by  act  of  parliament  (^)  : 

Railway  rolling  stock  in  any  works  not  belonging  to 
the  tenant  of  the  works  (r). 

If  the  Agricultural  Holdings  Act  applies,  liired  ma- 
chinery and  breeding  stock. 

Things  privileged  sub  modo  or  conditionally,  i.e.  p>rivileged 
only  if  there  he  other  sufficient  distress  on  the  premises  — 
Beasts  of  the  plough  and  sheep  (s)  : 
Tools  of  trade  (0  : 
If  the  Agricultural  Holdings  Act  applies,  agisted  stock. 

Subject  to  the  above  exceptions,  all  cattle,  goods  and  chat- 
tels which  are  found  upon  the  demised  premises  ^  may  be 

(0  Co.  Lit.  47,  and  439,  post.  (/>)  G  &  7  Vict.  c.  40,  ss.  18,  19. 

\k)  Swire  v.  Leach,  34  L.  J.,  C.  P.  (7)  Gasworks    Clauses    Act,    1847 

150,  and  440,  post.  (10  Vict.  c.  15),  s.  14. 

(/)  Simpson  v.  Ilartopp,  1  Smith  L.  (r)  35  &  30  Vict.  c.  60,  s.  3,  post, 

C.  439  (7th  cd.),  and  442,  post.  447. 

(m)  I'age  442,  post.  (s)  Keen  v.  Priest,  4  H.  &  N.  236, 

(h)  7  Ann.  c.  12,  s.  3.  and  449,  post. 

(0)  34  &  35  Vict.  c.  79,  and   445,  (0  Corton  v.  Falkner,  4  T.  R.  505, 

post.  and  451,  post. 

'  Goods  of  sub-lessees. —  {a)  At  common  Imr  tliey  are  liable,  Jimison  v. 
Reifsnoider,  97  Pa.  St.  i:'.(i ;  Wliitinf,'  v.  Lake,  91  Id.  349;  Riddle  v.  Welden, 
5  Whart.  (Pa.)  9,  10  {per  Gibson,  C.  J.)  ;  Langton  v.  Baeon,  17  Q.  B.  (Ont.) 
559  ;  but  they  could  not  be  distrained  off  tlic  premises.  Coles  v.  Marquand,  2 
Hill  (N.  Y.)  447,  449  (per  Bronson,  J.). 

(b)  fn  Illinois  it  was  formerly  held  (by  construction  of  an  early  statute) 
that  ^mods  of  subdessees  could  not  be  distrained.  Gray  ;•.  Rawsou,  11  111.  527, 
except  crops,  Uiil  v.  Dighton,  25  111.  154,  protected  by  landlord's  statutory 
lien. 

The  rule  has  been  changed,  and  goods  of  sub-lessees  arc  now  liable.  Sts. 
III.  ch.  80,  sec.  32. 

682 


Ch.  XI.  S.  8.]  SUBJECT-MATTERS   OF   DISTRESS.  *436 

distrained  for  rent,  whether  they  be  the  effects  of  a  tenant 
or  of  a  stranger  (m),^  the  reason  being  that  the  hindlord  has 
a  lien  on  them  in  respect  of  the  place  in  which  they  are 
found,  and  not  in  respect  of  the  person  to  whom  they 
*  belong.  The  property  must  be  upon  the  premises,  [*436] 
except  in  the  case  of  a  fraudulent  removal  (a:),  or 
cattle  feeding  or  depasturing  upon  any  common  appendant 
or  appurtenant  to  the  demised  premises  (y),  and  except  in 
the  cases  of  distresses  by  the  crown  (2).  The  property  must 
not  be  in  such  a  situation  that  the  attempt  to  distrain  it 
would  probably  lead  to  a  breach  of  the  peace :  thus  it  has 
been  held  that  a  horse  cannot  be  distrained  whilst  a  person 
is  actually  riding  it  (a). 

Partnership  property.  —  Where  a  mortgage  was  made  by 
two  partners  of  a  freehold  of  which  they  were  tenants  in 
common,  and  each  attorned  tenant  to  the  mortgagees  of  one 

(u)  Gilb.  Distr.  33;  3  Blac.  Cora.  (2)  Bullen,  76. 

7;  Smith  L.  &  T.  194  (2nd  ed.).  (a)  Storey   v.  Robinson,  6   T.    R. 

(x)  Post,  Sect.  10  (e).  138. 
(//)  11  Geo.  2,  c.  19,  s.  8,  post,  458. 

1  Goods  of  strangers.  —  (a)  At  common  law. —  The  goods  of  strangers  upon 
the  premises  (and  not  privileged)  may  be  distrained.  Kleber  v.  Ward,  88  Pa. 
St.  93  (a  piano  leased  to  tenant's  wife  prior  to  act  of  May  13,  1876)  ;  Price  v. 
McCallister,  3  Grant's  Gas.  (Pa.)  248  (billiard-table  rented  to  lessee  by 
month)  ;  Karns  v.  McKinney,  74  Pa.  St.  387  ;  Kessler  v.  M'Conachy,  1  Ravvle 
(Pa.)  435,  441  (per  Rogers,  J.)  ;  O'Donnel  v.  Seybert,  13  S.  &  R.  (Pa.)  54,  57 
(per  Duncan,  J.)  ;  Wright  r.  Matthews,  2  Blackf.  (Ind.)  187;  Applegate  v. 
Crawford,  2  Ind.  579 ;  Stevens  v.  Lodge,  7  Blackf.  594.  Tlie  wife's  separate 
property  is  liable,  Blanche  f.  Bradford,  .38  Pa.  St.  344;  and  the  stranger  is 
estopped  to  deny  landlord's  authority,  Smith  v.  Aubrey,  7  Q.  B.  (Ont.)  90. 

But  if  the  goods  are  removed  from  premises  they  cannot  be  distrained, 
Adams  v.  La  Comb,  1  Dall.  (Pa.)  440;  Scott  v.  McEwen,  2  Phila.  170  ;  Sleeper 
r.  Parrisli,  7  Id.  247 ;  and  they  may  be  removed  to  avoid  distress  without  pen- 
alty. Strong  V.  Stebbins,  5  Cow.  (N.  Y.)  210. 

(6)  Wilder  statutes.  —  In  New  Jersey  (Rev.  Sts.  pp.  308--314,  sec.  8),  Illinois 
(Sts.  ch.  80,  sees.  16-35),  Virginia  (Code,  sec.  2792),  West  Virginia  (Code,ch. 
93,  sec.  11),  Kentucky  (Gen.  Sts.  ch.  66,  sec.  13),  Florida  (Dig.  Laws,  ch. 
137,  sec.  1),  South  Carolina  (Gen.  Sts.  sec.  1826),  &c.,  goods  of  strangers  are 
(expressly  or  by  implication)  exempted  from  distress.  In  Ontario  they  are 
exenipt,  except  (under  circumstances)  those  of  certain  near  relatives,  and 
claimants  under  execution,  &c.,  tlirough  tenant  (Rev.  Sts.  ch.  14.3,  sec.  28). 

In  several  states  the  right  to  distrain  stranger's  goods  is  expressly  granted  : 
Delaware  (Laws  of  Delaware,  ch.  120,  sec.  22),  Louisiana  (Civil  Code,  Art. 
2705-2709),  Quebec  (Civil  Code,  Art.  1622),  &c. ;  and  in  some  states  it  is  left 
as  at  common  law. 

683 


*436  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  8. 

moiety  at  a  separate  rent,  it  was  held  by  Bacon,  C.  J.,  who 
pointed  out  that  his  decision  was  "directly  against  the  com- 
mon sense  and  justice  of  the  case,"  that,  under  separate 
distresses  for  rent  in  respect  of  each  moiety,  the  mortgagees 
could  not  seize  the  partnership  assets,  but  only  such  goods  as 
each  partner  was  separately  entitled  to  (6).^ 

Corn  and  Growing  Crops. 

Distress  of  corn  and  growing  crops.  —  By  the  common  law 
cocks  and  sheaves  of  corn  and  other  farm  produce  and  grow- 
ing crops  could  not  be  distrained,  but  were  absolutely  privi- 
leged from  distress  for  rent,  although  there  were  no  other 
goods  on  the  premises  (c).^  But  by  2  W.  &  M.  sess.  1,  c.  5, 
s.  3,  "  any  person  having  rent  in  arrear  and  due  upon  any 
demise,  lease  or  contract  may  seize  and  secure  any  sheaves 

(b)  Parke,  Ex  parte.  Potter,  In  re,  joint  demise,  or  a  demise  in  common. 

L.  R.,  18  Eq.  381  ;  30  L.  T.  618;  22  See  BuUen,  80. 

W.  R.  768.     A  distress  for  the  whole  (r)  Simpson    i\    Hartopp,  Willes, 

rent,  however,  may  be  made  on  the  512;  1  Smith  L.  C.  439  (7th  ed) 
goods  of  any  tenants  holding  under  a 

1  Property  exempt  from  seizure  on  execution  sometimes  exempt 
from  distress.  —  In  several  states  property  exempt  from  seizure  on  execution 
is  exempt  from  distress;  so  in  Illinois  (except  crops),  and  in  Ontario  (except 
as  otherwise  provided),  &c. 

Unless  specially  exempted,  they  are  liable.  Harley  v.  Weathersbee,  21  S. 
C.  243. 

"Waiver  of  exemption.  —  Exemption  may  be  waived  by  provision  in  the 
lease.     M'Kinncy  v.  deader,  6  Watts  (Pa.)  34. 

-Crops.  —  In  several  states  there  are  special  statutes  authorizuig  distress  of 
growing  crops  and  sheaves,  cocks  and  stocks  of  corn,  grain,  and  other  i)roduce 
(Laws  of  Del.  ch.  120,  sec.  2  ;  Revision  of  N.  J.  p.  30i>,  sec.  7  ;  &c.). 

Many  of  the  states  (see  «;i/e,  sec.  1,  note,  "American  substitutes  for  dis- 
tress") give  landlords  special  statutory  liens  upon  the  crops  (gi'nerall)-  para- 
mount to  all  other  liens).  These  liens  frequently  exist  in  conjunction  with 
(though  superior  to)  the  landlord's  ordinary  lien,  and  frecjuently,  also,  where 
tlie  law  of  distress  does  not  prevail,  special  remedies  being  provided  for  enforce- 
ment. 

In  Georrjio  ami  Terns  a  crop  cannot  be  distrained  until  it  is  mature.  Scott 
V.  Russell,  72  (in.  35  ;  Slay  v.  Milton,  64  Tex.  421. 

In  Illinois  the  statutory  lien  may  be  enforced  by  distress.  Mead  v.  Thomp- 
son, 78  111.62;  Miles  r.  James,  36  Id.  391);  or  in  any  other  convenient  way,  as 
by  action  against  lessee's  vendee,  Prettyman  v.  Unland,  77  111.  20(5;  by  taking 
possession  of  the  crop,  Hunter  r.  Whitfield,  H!l  111.  22!);  or  replevying  it  from 
officer  who  has  levied  upon  it,  Wetsel  r.  Mayers,  91  III.  497,  &c. 

That  rent  payable  in  kind  or  in  shares  may  be  distrained  for  in  most  states, 
see  (inle,  sec.  2,  note,  "  Fixed  rent." 

684 


Ch.  XI.  S.  8.]  SUBJECT-MATTERS   OF   DISTRESS.  *437 

or  cocks  of  corn,  or  corn  loose  or  in  the  straw,  or  hay  lying 
or  being  in  any  barn  or  granary,  or  upon  any  hovel,  stack  or 
rick,  or  otherwise  upon  any  part  of  the  land  or  ground 
charged  with  such  rent,  and  lock  up  or  detain  the  same  in 
the  phice  where  the  same  shall  be  found,  for  or  in  the  nature 
of  a  distress,  until  the  same  shall  be  replevied  or  sold :  but 
the  same  must  not  be  removed  from  such  place  to  the 
damao-e  of  the  owner."  Under  this  statute  it  seems  that  the 
landlord  must  sell  at  the  expiration  of  five  days,  if  the  corn 
be  not  replevied  ((7). 

By  11  Geo.  2,  c.  19,  ss.  8,  9,  the  landlord  may  take  and  seize, 
as  a  distress  for  arrears  of  rent,  all  sorts  of  corn  and  grass, 
hops,  roots,  fruits,  pulse  or  other  product  (e)  whatsoever 
growing  upon  any  part  of  the  estate  demised,  as  a  distress  for 
arrears  of  rent;  and  the  same  may  cut,  gather,  make, 
cure,  carry  and  lay  up,  ivhen  ripe^  in  the  barns  or 
*  other  proper  place  on  the  premises ;  and  if  there  [*437] 
should  be  no  barn  or  proper  place  on  the  premises, 
then  in  any  other  barn  or  proper  place  which  he  shall  hire  or 
otherwise  procure  for  that  purpose,  and  as  near  as  may  be  to 
the  premises ;  and  in  convenient  time  appraise,  sell,  or  other- 
wise dispose  of  the  same,  towards  satisfaction  of  the  rent, 
and  of  the  charges  of  such  distress,  appraisement  and  sale ; 
the  appraisement  thereof  to  be  taken  when  cut,  gathered, 
cured  and  made,  and  not  before  ;  provided  that  notice  (/)  of 
the  place  where  such  distress  shall  be  lodged,  shall  within 
the  space  of  one  week  after  the  lodging  or  depositing  thereof 
in  such  place,  be  given  to  the  tenant,  or  left  at  the  last  place 
of  his  abode  ;  and  if  the  tenant  shall  pay  or  tender  the 
arrears  of  rent  and  costs  of  the  distress  before  the  corn, 
&c.  be  cut,  the  distress  shall  cease,  and  the  corn,  &c.  be 
delivered  up. 

By  56  Geo.  3,  c.  50,  s.  6,  entitled  "  An  Act  to  regulate  the 
Sale  of  Farming  Stock  taken  in  Execution,"  landlords  are 

(d)  Piggott  V.  Birtles,  1  M.  &  "W.      generis  to  those  enumerated ;  Clark  v. 
448.  Gaskarth,  8  Taunt.  431  ;    Smith   L. 

(e)  These   words  do    not   include       &  T.  206  (2nd  ed.). 

young    trees  growing   in   a   nursery  ( /')  See  form  of  such  notice,  Ap- 

ground,  but  only  other  things  ejusdem       pendix  D.,  Sect.  5. 

685 


*438  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  8. 

not  to  distrain  for  rent  "  on  any  corn,  hay,  straw  or  other 
produce,"  which  have  been  seized  in  execution  and  sold  by 
the  sheriff  or  other  officer  according  to  provisions  of  that 
act,  under  the  contract  of  the  tenant  not  to  take  the 
straw,  &c.,  off  the  premises,  and  which  at  the  time  of  the 
sale  have  been  severed,  "  nor  on  any  turnips  whether  drawn 
or  growing,"  if  sold  according  to  the  provisions  of  the  act. 
By  14  &  15  Vict.  c.  25,  s.  2  (^),  growing  crops  seized 
and  sold  under  an  execution  are  liable  for  accruing  or  sub- 
sequent rent. 

Cases  decided  upon  the  subject.  —  The  grantee  of  a  rent- 
charge,  with  power  to  distrain  in  the  same  manner  as  the 
law  directs  in  case  of  rent  in  arrear,  may  under  such  power, 
and  the  2  W.  &  M.  sess.  1,  c.  5,  and  4  Geo.  2,  c.  28,  s.  5,  dis- 
train oats  and  hay  in  stacks  or  trusses  (A).  Trees,  shrubs 
and  plants  growing  in  lands  Avhich  the  defendants  had  de- 
mised to  the  plaintiffs  for  a  term,  and  which  they  had  con- 
verted into  nursery  ground,  and  planted  subsequently  to  the 
demise,  are  not  distrainable  by  the  landlord  under  the  11 
Geo.  2,  c.  19,  as  it  applies  only  to  corn  and  other  products  of 
the  land  which  may  become  ri2:)e,  and  are  capable  of  being 
cut  and  laid  up  («).  Growing  crops  cannot  be  sold  before 
they  are  ripe  (^),  but  where  the  jury  find  that  no  damage 
has  been  sustained  by  the  premature  sale,  the  tenant  is  not 
entitled  to  a  verdict  even  for  nominal  damages  (?).  A  ten- 
ant's growing  crops,  taken  in  execution  and  sold,  and  remain- 
ing on  the  premises  for  the  purpose  of  being  reaped, 
[*438]  are  distrainable  by  the  *  landlord  for  rent  become 
due  after  the  taking  into  execution  {m').  A  custom 
that  a  tenant  may  leave  his  away-going  crop  in  the  barns, 
&c.  of  the  farm  for  a  certain  time  after  the  lease  has  expired, 


(7)  This  act  is  set  out  verbatim  in  (k)  Owen  v.  Leigh,  .3  B.  &  A.  470; 

Appendix  A.,  Sect.  4.  Proudlove  v.  Twemlow,  1  Cr.  &  M. 

(/()  Johnson  v.  Faulkner,  2  Q.  B.  320. 

025;  Smith  L.   &   T.  207    (2n(l  ed.).  (/)  RodRcrs   r.   Parker,  18    C.    B. 

But  see    Miller  v.  Green,  2  C.  &  J.  112;   26  L.  .!.,  C.   V.   220;    and   see 

H.*};  8  Bing.  02.  Lucas  v.  Tarleton,  3  II.  &  N.  116. 

(;■)    Clark   i-.  Gasknrth,  8   Taunt.  (m)  14  &  15  Vict.  c.  25,  s.  2  ;  post, 

431,  742  ;  Clarke  r.  Calvert,  3   Moo.  Appendix  A.,  Sect.  4,  wliere  this  act 

114  ;  Amos  &  F.  310  (2nd  ed.),  is  .set  out  verbatim.     As  to  the  prcvi- 

686 


Cii.XI.  S.  0.]  EXEMPTIONS    FROM   DISTRESS.  *438 

operates  as  a  prolongation  of  the  term  ;  and  the  hxndlord 
may  distrain  the  corn  so  left,  for  rent  in  arrear,  before  six 
months  have  expired  from  the  determination  of  the  term  (w). 
Corn  sown  by  a  tenant  at  will  (who  died  before  harvest), 
and  purchased  by  another  person,  cannot  be  distrained  by 
the  landlord  for  rent  due  from  a  subsequent  tenant  (o). 


Sect.  9.  —  The  Exemptions  from  Distress. 
(a)  Fixtures. 

Fixtures  absolutely  exempt.  —  Things  annexed  to  the  free- 
hold, such  as  buildings  and  fixtures,  constitute,  for  the  time 
being,  part  of  the  freehold,  and  are  absolutely  exempt  from 
distress,  although  there  are  no  other  goods  on  the  premises. 
Therefore  furnaces,  millstones,  chimney-pieces,  and  the  like 
cannot  be  distrained,  because  they  cannot  be  taken  away 
without  doing  damage  to  the  freehold,  which  the  law  will 
not  allow  (^)  ;  and  because  those  things  only  can  be  dis- 
trained for  rent  which  the  landlord  can  afterwards  restore 
in  the  plight  in  which  they  were  before  the  distress,  and 
without  injury  thereto  by  the  removal  (^).  So  also  kitchen 
ranges,  stoves,  coppers,  grates  and  other  fixtures  of  the  like 
nature  put  up  by  the  tenant  for  the  more  convenient  or  prof- 
itable use  of  the  demised  premises,  and  which  he  is  entitled 
to  sever  and  remove  during  the  term,  are  not  distrainable 
for  rent  (although  they  may  be  seized  and  sold  by  the  sheriff 
under  an  execution   against  the  goods  of  the  tenant)  (r), 

ous  law,  see  Wharton  v.  Naylor,  12  895;  Dalton  r.  Whittem,  3  Q.  B.  961 ; 

Q.  B.  673 ;  6  D.  &  L.  136.  Thompson   v.  Pettitt,   10  Q.  B.  101  ; 

(n)  Beavan  v.  Delahay,  1  H.  Blac.  Moore  v.  Drinkwater,  1  F.  &  F.  134 ; 

5;  Lewis  v.  Harris,  Id.  7,  n.;  Kniglit  Smith  L.  &  T.  196  (2nd  cd.)  ;  Bullen, 

V.  Bennett,  3  Bing.  364.  92. 

(o)  Eaton  v.  Southby,  Willes,  131.  (r)  Poole's  case,  1  Salk.  368 ;  Place 

(p)  Simpson  v.  Hartopp,  1    Smitli  i;.  Fagg,  4  M.  &  R.  277;  Bates  r.  Duke 

L.  C.  439  (7th  ed.)  ;  Amos  &  F.  314  of  Beaufort,  8  Jur.  N.  S.  270,  L.  J. ; 

—  318  (2nd  ed.).  Amos  &  F.  321  (2nd  ed.)  ;    Smith  L. 

(7)  Co.  Lit.  47  b;  Pitt  v.  Shew,  4  &  T.  195  (2nd  ed.). 
B.  &  A.  207  ;  Darby  v.  Harris,  1  Q.  B. 

687 


*439  DISTEESS   FOR   RENT.  [Ch.  XI.  S.  9. 

unless  the  tenant  has  by  his  lease  or  agreement  renounced 
his  right  to  disannex  and  remove  them  during  the  term  (n). 

Railway.  —  A  railway  is  not  distrainable  (f).  Machinery 
fixed  to  the  freehold,  not  for  the  improvement  or  profitable 
use  of  the  land,  but  only  for  the  purpose  of  being  more  con- 
veniently used  as  machinery ;  for  instance,  a  mule  used 
[*439]  for  spinning  cotton,  though  sunk  into  a  stone  *  floor 
and  secured  by  molten  lead,  retains  its  chattel  charac- 
ter, and  may  be  distrained  for  rent  (?t).  A  mere  temporary 
removal  of  fixtures  for  purposes  of  necessity  is  not  sufficient 
to  destroy  the  privilege  (.r)  ;  thus  a  smith's  anvil  on  which 
he  works  is  not  distrainable ;  for  it  is  accounted  part  of  the 
forge,  though  it  be  not  actually  fixed  by  nails  to  the  shop  (^/)  ; 
so  a  millstone  is  not  distrainable,  though  it  be  removed  out 
of  its  proper  place  in  order  to  be  picked ;  because  such  re- 
moval is  of  necessity,  and  the  stone  still  continues  to  be  part 
of  the  mill  (y)  ;  nor  a  lime-kiln,  which  is  considered  not  to 
be  a  personal  chattel,  but  part  of  the  freehold  (2). 

Keys,  &c.  —  In  like  manner  keys  (a),  windows,  and  char- 
ters concerning  the  realty,  being  by  construction  of  law 
parcel  of  the  freehold,  are  not  liable  to  be  distrained  (6). 
If  a  landlord,  under  a  distress  of  rent,  sever  fixtures  from 
the  freehold  and  dispose  of  them,  he  is  liable  in  trover ;  the 
articles  may  be  described  in  the  statement  of  claim  as  goods 
and  chattels;  and  the  plaintiff  does  not  thereby  waive  his 
right  of  maintaining  that  the  distress  is  illegal  because  fix- 
tures cannot  be  distrained  for  rent  in  arrear  (c).  In  such 
action  their  value  as  chattels  only  (not  as  fixtures)  can  be 
recovered  (fZ).  But  it  seems  otherwise  in  an  action  of  tres- 
pass (e).     No  action  can  be  maintained  for  a  mere  construc- 

(s)  Dumcrpue  v.  Rumsey,  2  II.  &  (a)  11  Co.  R.  50 ;  G  Exch.  311. 

C.  777  ;  33  L.  J.,  Ex.  88.     '  (6)  Gilb.   Uistr.  34,  48  ;  llellawcll 

(t)  Turner  v.  Cameron,  L.  11.,  5  Q.  v.  Eastwood,  0  Exch.  205. 

B.  300 ;  .39  L.  J.,  Q.  B.  125.  (r)  Dalton    v.    Wliittem,    3    Q.    B. 

(«)  Hcllawell  v.  Eastwood,  0  Exch.  901  ;  Smith  L.  &  T.  199  (2n(l  ed.). 

295;  1  Smith  L.  C.  391  (Otli  ed.).  (d)  Chirkc   r.  Ilolford,  2  C.  &  K. 

(x)  Gorton    v.    Faulkner,   4    T.   R.  540. 

667.  (e)  Tliomj.son  7-.    I'cttitt,  10  ().  B. 

(y)  Bro.  Ahr.  tit.  Distress,  pi.  23;  10]  ;  Moore  r.  Driiikw.iter,  1   F.  &   K. 

Amos  &  F.  317  (2nd  ed.).  131. 


(c)  Niblet  V.  Smith,  4  T.  R.  504. 


688 


Ch.  XI.  S.  9.]  EXEMPTIONS   FROM  DISTRESS.  *440 

tive  seizure  of  fixtures  as  a  distress,  but  without  any  actual 
seizure  or  severance  or  removal  thereof  (/). 

(b)  Animals  Ferce  Naturce. 

When  animals  ferae  naturae  may  be  distrained.  —  Those  things 
wherein  no  man  can  have  an  absolute  and  valuable  property, 
such  as  cats,  wild  rabbits  and  animals  ferai  naturte,  cannot 
be  distrained  (^)  ;  but  if  deer,  which  are  ferse  natura3,  are  kept 
in  a  private  inclosure  (not  being  a  park)  for  the  purpose  of 
sale  or  profit,  this  so  far  changes  their  nature,  by  reducing 
them  to  a  kind  of  stock  or  merchandise,  that  they  may  be 
distrained  for  rent  (Ji).  And  deer  in  a  park  when  reclaimed 
become  personal  chattels,  and  cease  to  be  parcel  of  the  inheri- 
tance («'),  so  that  it  seems  they  also  may  be  distrained  for 
rent  (/c),  as  likewise  may  birds  kept  in  cages,  as  parrots 
or  canaries,  and  even  pheasants  and  partridges  in  coops 
before  they  can  fly,  inasmuch  as  they  may  be  the  subject  of 
larceny  (/). 

Dogs.  —  As  for  *  dogs,  they  are  not  indeed  the  sub-  [*440] 
ject  of  larceny  ;  and  Lord  Coke  (m)  thought  them  not 
to  be  distrainable,  but  the  better  opinion  seems  to  be  that 
they  are  (n). 

(c)  Croods  delivered  to  a  Person  in  the  way  of  his  Trade. 

Exemption  for  benefit  of  trade.  —  Things  delivered  to  a 
person  exercising  a  public  trade,  to  be  carried,  wrought, 
worked  up  or  managed  in  the  way  of  his  trade  or  employ, 
are  absolutely  exempt  from  distress,  although  there  are  no 
other  goods  on  the  premises  (o).  Thus  a  horse  standing  in 
a  smith's  shop  to  be   shod,  materials  sent  to  a  weaver,  or 

(/)  Beck  V.  Denbigh,  29  L.  J.,  C.  (m)  Co.  Lit.  47  a. 

P.  273.  (n)  Davies  ?•.  Powell,  Willes,   48 ; 

(.9)  Co.  Lit.  47;  Bullen,  90.  Bunch   v.   Kennington,  1  Q.  B.  679; 

(h)  Davies  v.  Powell,  Willes,  46.  Smith  L.  &T.  203  (2ncl  ed.)  ;  Bullen, 

(0  Ford  V.  Tynte,  2  J.  &  H.  150 ;  90.     And  see  the  question  discussed 

31  L.  J.,  Ch.  177.  in  the  notes  to  Simpson  r.  Hartopp,  1 

(/t)  Morgan    v.    Earl    of    Aberga-  Smith  L.  C.  439  (7th  ed.). 
venny,  7  C.  B.  768;  Bullen,  90.  (o)  Simpson    v.    Hartopp,    Willes, 

(0  Reg.  V.  Cory,  10  Cox,  C.  C.  23;  412;    1    Smith  L.   C.  439  (7th  ed.)  ; 

Reg.  V.  Shickle,  L.  R.,  1  C.  C.  R.  158;  Bullen,  95 ;  Smith  L.  &  T.  200  (2nd 

38  L.  J.,  M.  C.  21.  ed.). 

689 


*440  DISTRESS   FOE   RENT.  [Ch.  XI.  S.  9. 

cloth  to  a  tailor  to  be  made  up,  and  the  like,  are  privileged 
for  the  sake  of  trade  and  commerce,  which  could  not  be 
carried  on  if  such  things  under  these  circumstances  could  be 
distrained  for  rent  due  from  the  person  in  whose  custody 
they  are  {jO-^  ^^^^  although  materials  delivered  by  a 
manufacturer  to  a  weaver,  to  be  by  him  manufactured  at 
his  own  house,  are  privileged  from  distress  for  rent  due 
from  the  weaver  to  his  landlord,  yet  a  frame  or  other  machin- 
ery delivered  by  the  manufacturer  to  the  weaver  along 
with  the  materials,  for  the  purpose  of  being  used  in  the 
weaver's  house  in  the  manufacture  of  such  materials,  is  not 
privileged,  unless  there  are  other  goods  upon  the  premises 
sufficient  to  satisfy  the  rent  due  {q). 

The  result  of  the  cases  has  been  said  to  be,  that  if  articles 
are  sent  to  a  place  to  remain  there,  they  are  distrainable, 
but  that  if  sent  for  a  particular  object,  and  the  remaining 
at  the  place  be  an  incident  necessary  for  the  completion  of 
that  object,  they  are  not  (r).  But  this  rule  wdll  not  account 
for  all  the  decisions,  and  the  exemption  seems  rather  to  arise 
solely  for  the  benefit  of  trade  («).  Goods  pledged  wath  a 
pawnbroker  are  not  distrainable  for  rent  due  from  him,  not- 
withstanding they  have  remained  in  his  possession  above 
one  year  without  any  interest  being  paid  (^).     Horses  and 

(p)  Co.   Lit.   47    a;    Gisbourn    v.  (?)  Parsons  i-.  Gingell,  4  C.  B.  545  ; 

Hurst,  1  Salk.  249;  Gibson  v.  Ircson,  16  L.  J.,  C.  P.  227. 

3  Q.  B.  .39;  Smith  L.  &  T.  200    (2nd  (s)  See  Lyons  v.  Elliott,  note  (/) 

ed.).  infra. 

(7)  Wood  v.  Clarke,  1  C.  &  J.  484  ;  (0  Swire  r.  Leach,  18  C.  B.,  N.  S. 

Gibson  v.  Ireson,  3  Q.  B.  39.  479 ;  34  L.  J.,  C.  P.  150. 

^  Goods  delivered  in  way  of  trade.  —  E.xaniplos:  A  ship  at  yard  for 
repairs,  and  the  materials,  tlioiii^li  jjiircliased  of  tlie  sliipbiiildiT,  Gildersleeve 
V.  Ault,  10  Q.  B.  (Ont.)  401 ;  but  in  Clarke  v.  Millwall  Dock  Co.,  17  Q.  B.  D. 
494,  it  was  held  that  a  ship  made  by  lessee  for  the  owner  (and  paid  for  in 
instalments)  was  not  e.xetnpt  because,  though  in  hands  of  lessee,  in  the  way 
of  his  trade  it  was  not  ilclirercd  to  him. 

Lops  delivered  at  mill  to  be  sawed  into  deals  are  exempt,  Guy  v.  Rankin, 
23  N.  B.  49,  and  the  deals  manufactured  from  them.  Price  v.  Ilall,  2  Quebec, 
L.  R.  88.  The  exemption  would  be  destroyed  if  tenant  were  a  joint  owner 
(per  Allen,  C.  J.  and  Weldon  and  King,.!.  J.,  in  Guy  v.  Rankin,  23  N.  B.  49). 

It  has  been  lield  that  a  horse  sent  to  a  livery  stable  to  be  fed  and  taken 
care  of  is  exempt.     Youngblood  v.  Lowry,  2  M'Cords  (S.  C.)  .39. 

690 


Cii.XI.  S.  0.]  EXEMPTIONS   FROM   DISTRESS.  *441 

carriages  standing  at  a  livery  may  be  distrained  (^ii),  but 
a  carriage  sent  to  a  coachmaker  and  commission  agent  for 
sale  may  not  (;r),  nor  may  goods  warehoused  in  the  ordinary 
course  of  business  at  a  furniture  depository  (y).  The 
privilege  has  been  held  not  to  attach  to  a  boat  sent 
by  the  *  owner  to  salt  works,  and  left  a  reasonaljle  [*441] 
time  in  a  canal  on  the  premises,  for  the  purpose  of 
being  loaded  with  salt  (2;),  nor  to  a  ship  in  the  course  of 
being  built  in  a  dock  (22),  nor  to  brewers'  casks  sent  to  a 
public-house  with  beer,  and  left  there  until  the  beer  is  con- 
sumed (a).  But  where  a  butcher  had  sent  a  beast  to  the 
shop  of  another  butcher  to  be  slaughtered,  and  after  it  had 
been  slaughtered  the  carcass  remained  in  the  shop  for  some 
time  (but  how  long  did  not  appear),  it  was  held  that  the 
carcass  was  privileged  (6). 

Goods  in  hands  of  factor  or  agent.  —  Goods  of  a  principal 
in  the  hands  of  a  factor  for  sale  are  privileged  from  distress 
for  rent  due  from  such  factor  to  his  landlord,  on  the  ground 
that  the  rule  of  public  convenience,  out  of  which  the  privi- 
lege arises,  is  within  the  exemption  of  a  landlord's  general 
right  to  distrain  (c).i     On  the  same  principle  goods  landed 

(«)  Francis    r.    Wyatt,   1   W.    Bl.  W.  633;  s.  c.  (in  error),  3  M.  &  W. 

483  ;  3  Burr.  1498  ;    Parsons  v.  Gin-  677. 

gell,  supra.  (zz)  Clarke  ik  Millwall  Dock  Co., 

(x)  Findon   v.   M'Laren,   6    Q.   B.  53  L.  T.  316,  ;)er  Pollock,  B. 

891.  (a)  Joule  v.  Jackson,  7   M.  &  W. 

((/)  Miles  V.  Furber,  L.  R.,  8  Q.  B.  450. 

77  ;"  42  L.  J.,  Q.  B.  41  ;  27  L.  T.  756 ;  (6)  Brown  v.  Shcvill,  2  A.  &  E.  138. 

21  W.  R.  262.  (c)  Gilman  v.  Elton,  3  Brod.  &  B. 

(z)  Muspratt   v.  Gregory,   1    M.  &  75. 

1  Goods  deposited  or  consigned,  &c.,  in  warehouse,  Owen  v.  Boyle,  22 
Me.  47  ;  Briggs  v.  Large,  30  Pa.  St.  287  ;  Karns  v.  McKinney,  74  Id.  387,  389 
(pei-  Mercur,  J.)  or  for  sale  in  store  of  commission  merchant,  McCreery  v. 
Clafflin,  37  Md.  435;  Howe  Machine  Co.  v.  Sloan,  6  W.  N.  C.  (Pa.)  265  and 
(Supreme  Court)  87  Pa.  St.  438,  are  exempt  from  distress. 

It  lias  been  held  that  goods  taken  on  storage  by  an  ordinary  merchant  are 
exempt.  Brown  v.  Sims,  17  S.  &  R.  (Pa.)  138;  Co.inah  v.  Hale,  23  Wend. 
(N.  Y.)  462. 

If  goods  are  deposited  for  sale  by  one  not  a  commission  merchant,  it  must 
appear  for  what  purpose  they  were  deposited,  Bevan  v.  Crooks,  7  W.  &  S. 
(Pa.)  452  ;  and  it  has  been  held  in  Ontario  that  if  a  consignee  is  paid  other- 
wise than  by  a  commission,  the  goods  consigned  are  not  exempt,  Hurd  v. 
Davis,  23  Q.  B.  (Ont.)  123. 

691 


*442  DISTRESS   FOR   RENT.  [Ch   XI.  S.  9. 

at  a  wharf  and  consigned  to  a  broker  as  agent  of  the  con- 
signor, for  sale,  and  placed  by  the  broker  in  the  wharfinger's 
warehouse  over  the  wharf  for  safe  custody  until  an  oppor- 
tunity for  selling  them  should  occur,  were  held  not  distrain- 
able  for  rent  due  in  respect  of  the  wharf  and  warehouse  (c?). 
Similarly,  corn  sent  to  a  factor  for  sale,  and  deposited  b}^ 
him  in  the  warehouse  of  a  granary -keeper,  he  not  having 
any  warehouse  of  his  own,  is  under  the  same  protection 
against  a  distress  for  rent  as  if  it  were  deposited  in  a  ware- 
house belonging  to  the  factor  himself  (e). 

Auctioneer.  —  Goods  sent  to  an  auctioneer  to  be  sold  on 
premises  occupied  by  him,  or  in  an  open  yard  belonging  to 
premises  in  his  occupation,  are  privileged  (/),  though  the 
place  of  sale  is  merely  hired  for  the  occasion,  or  the  occupa- 
tion has  been  acquired  by  the  auctioneer  by  an  act  of  tres- 
pass (^).  But  there  must  be  a  de  facto  occupation  by  the 
auctioneer,  otherwise  the  privilege  is  lost.  Therefore  where 
an  auction  was  held  on  a  tenant's  premises  of  the  tenant's 
goods,  and  the  goods  of  the  plaintiff  were  for  convenience 
being  sold  along  witli  them,  it  was  held,  both  on  author- 
ity (Ji)  and  principle,  that,  as  the  auctioneer  was  in  no  sense 
the  occupier  of  the  premises,  the  goods  of  the  plaintiff 
might  be  distrained  along  with  those  of  the  tenant  (^). 

Goods  at  an  inn.  —  The  cattle  and  goods  of  guests 

[*442]  at  an  inn,i  so  long  as  the}"-  remain  on  *  the  premises, 

are  exempt  from  a  distress  for  rent  due  from  the 

(rf)  Tliompson  v.  Mashiter,  1  Bing.  (i)  Lyons  v.  Elliott,  L.  R.,  1  Q.  B. 

283.  D.  210 ;  45  L.  J.,  Q.  B.  159;  33  L.  T. 

(e)  Mattliias  v.  Mesnard,  2  C.  &  P.  80G;  24  W.  R.  29(3.   Tliis  decision  has 

353.     But  wine  sent  to  a  warehouse  been  not  a  little  criticised  (see  Red- 

merely  to  be  matured  has  been  held  man  and  Lyon,  L.  &  T.  2nd  ed.,  p. 

not   exempt.     Ex    parte   Russell,    18  104)  ;  but  it  seems  tliat,  as  the  goods 

W.  R.  753.  of  third  parties  have  never  been  ex- 

(/)  Adams  v.  Grane,   1   Cr.  &  M.  empted  generally,  the  burden  of  proof 

380  ;   Brown  v.  Arundell,  10  C.  B.  54;  is  upon  each  third  jiarty  to  bring  him- 

Willianis  r.  Holmes,  8  Exch.  801.  self  within  the  benefit  of  the  exemp- 

(c/)  Brown  v.  Arundell,  su/na.  tion  he  sets  up. 

(h)  Crosier  v.  Tomkinson,  infra. 

'  Goods  of  boarders.  —  ft  is  held  in  Pennsi/lrntiia  (and  was  in  New  York 
while  the  law  of  distress  jirevailcd  there)  that  goods  of  boarders,  in  their  use 
and  possession  at  liotels  or  private  boarding-houses,  arc  exein])t  from  distress. 
Kiddle  v.  Welden,  5  Whart.  (Ta.)  9;  Matthews  v.  Stone,  7  Hill,  428. 

092 


Cn.  XI.  S.  9.]  EXEMPTIONS   FROM   DISTRESS.  *442 

innkeeper  (^).  But  they  must  be  actually  within  the  prem- 
ises of  the  inn  itself,  and  not  in  any  place  to  which  the 
innkeeper  may  have  removed  them  for  his  convenience : 
thus,  where  a  racehorse  was  distrained  for  rent  at  the  stable 
half  a  mile  distant  from  the  inn,  the  distress  was  deter- 
mined to  be  a  good  one,  and  that  the  plaintiff  had  no  remedy 
but  against  the  innkeeper  (Z).  It  was  once  held  that  the 
consent  of  the  landlord  to  the  goods  being  upon  the  prem- 
ises would  not  avail  to  prevent  his  power  of  distress ;  but 
if  such  consent  were  fraudulently  given  for  the  purpose 
of  obtaining  a  distress,  equity  would  relieve  upon  the  ground 
of  fraud:  thus,  where  the  servants  of  a  grazier  driving  a 
flock  of  sheep  to  London,  were  encouraged  by  an  innkeeper 
to  put  the  sheep  into  the  pasture  gounds  belonging  to  the 
inn,  and  the  landlord,  seeing  the  sheep,  consented  that  they 
should  stay  there  for  one  night,  and  then  distrained  them 
for  rent,  the  grazier  was  relieved  against  the  distress  Qn') 

(d)  Thhigs  in  actual  Use. 
May  not  be  distrained.  —  Things  in  actual  use  are  abso- 
lutely privileged  from  distress  for  rent,  or  even  for  damage 
feasant,   because    of    the    danger   to    the    public    peace  Qn). 
Therefore  a  horse,  whilst  a  man  is  riding  upon  him,  or  an 

(i)  Bac.  Abr.  Inns  and  Innkeepers  (w)  Fowkes  v.  Joyce,  2  Vern.  129 ; 

(B.)  ;    Crozier  i;.  Tomkinson,    2  Ld.  3  Lev.  260;  2  Wms.  Saund.  290,  n. 

Ken.  439;    Smith  L.   &  T.  204  (2nd  (7). 

ed.).  (n)  Smith  L.  &  T.  202  (2nd  ed.). 

(/)  Crosier    i'.    Tomkinson,   2   Ld. 
Ken.  439. 

Whether  the  goods  must  be  in  actual  possession  and  use  was  doubtful. 

In  Erb  v.  Sadler,  8  W.  N.  C.  (Pa.)  13,  and  Jones  v.  Goldbeck,  Id.  .5.33,  it 
was  held  by  the  Court  of  Common  Pleas  that  they  must  be,  and  goods  fur- 
nished lessee  for  use  in  other  parts  of  house  were  distrainable. 

It  was  so  held  also  in  Matthews  r.  Stone,  1  Hill  (N.  Y.)  565,  reversed  by 
Stone  I,'.  Matthews,  7  Id.  428  (by  divided  court). 

In  Marijland  formerly  goods  of  boarders  were  held  not  exempt  at  common 
law,  Trieber  v.  Knabe,  12  Md.  491,  by  Act  of  1868,  ch.  173;  they  are  now 
exempt,  but  the  exemption  only  applies  to  goods  in  possession  and  use  of 
boarder,  Leitch  v.  O wings,  34  Md.  262. 

In  Delarmre  property  of  boarders  in  boarding-houses  is  exempt  by  statute. 
Laws  of  Del.  ch.  120,  sec.  22. 

Lodgers.  —  The  goods  of  lodgers,  if  they  are  not  also  boarders,  are  not 
exempt.  Lane  v.  Steinmetz,  9  W.  N.  C.  (Pa.)  574  unless  by  special  statute. 
See  ante,  (f),  note.  "Lodgers." 

693 


*442  DISTRESS   FOE   RENT.  [Ch.  XI.  S.  9. 

axe  in  a  man's  liancl  cutting  wood,  or  the  like,  cannot  be 
distrained  (o).  But  a  dog  used  for  sporting  purposes,  or 
permitted  to  run  into  the  Avoods,  and  not  led  by  a  string,  is 
not  exempt  from  a  distress  for  damage  feasant  (jo).  Horses, 
wliilst  drawing  a  cart,  and  the  harness  thereon,  are  exempt 
from  a  distress,  even  for  damage  feasant  (5-).  Yarn  being 
carried  on  a  man's  shoulders  to  be  weighed  cannot  be  dis- 
trained any  more  than  a  net  in  a  man's  hand,  or  a  horse  on 
which  a  man  is  riding  (r). 

"Wearing  apparel.  —  It  seems  that  wearing  apparel,  though 
taken  oif  for  natui'al  repose  only,  is  liable  to  distress,  but 
that  clothes  actually  in  wear  are  exempt  (s). 

(e)  Groods  in  the  Custody  of  the  Law. 

Cannot  be  taken.  —  Goods  in  the  custody  of  the  law  are 
not  distrainable  for  rent ;  for  it  would  be  repugnant  that 
it  should  be  lawful  to  take  goods  out  of  the  custody  of 
the    law  (^)i      Therefore    cattle    or    goods    already   taken 

(0)  Co.  Lit.  47  a ;  Storey  v.  Robin-  (/•)  Read's  case,  Cro.  Eliz.  594. 

son,  6  T.  R.  138;  Field  v.  Adames,  12  (.s)  Bissett  v.  Caldwell,  Peake,  50; 

A.  &  E.  G49.  Baynes  v.  Smith,  1  Esp.  206. 

(j))  Bunch  V.  Kennington,  1  Q.  B.  {t)  Co.  Lit.  47  a;  Gilb.  Distr.  44; 

679.  Rex  V.  Cotton,  Parker,  120 ;  Eaton  v. 

(^)  Field  V.  Adames,   12  A.   &  E.  Southby,    Willes,    131;    Bullen,   84; 

649.  Smith  L.  &T.  204  (2nd  ed.). 

^  Goods  in  custodia  legis  are  not  distrainable.     Brown  r.  Fay,  6  Wend. 

(N.  Y.)  392  (taken  on  execution) ;  Noe  v.  Gibson,  7  I'aige  (N.  Y.)  513  (goods 
in  hands  of  receiver,  landlord  should  apply  to  be  examined  pro  interesse  suo). 

In  Illinois,  where  the  landlord  has  a  paramount  statutory  lien  upon  the 
crop,  it  is  held  that  he  may  distrain,  though  goods  are  in  custodia  lei/is,  Mead 
V.  Thompson,  78  111.  02;  Tiiomjjson  v.  Mead,  07  Id.  395;  Iladden  v.  Knicker- 
bocker, 70  Id.  077  (per  Scott,  J.)  ;  Miles  i-.  James,  30  Id.  399;  although  he 
cannot  other  goods,  Hadden  v.  Knickerbocker,  70  111.  077  ;  Ilerron  v.  Gill, 
112  Id.  247  ;  Rogers  v.  Dickey,  1  Gilm.  (111.)  030. 

Though  the  goods  cannot  be  distrained,  yet  the  landlord  has  claim  to 
share  in  proceeds  of  the  goods  up  to  amount  of  a  year's  rent  in  arrears  at 
the  time  of  the  seizure,  Biiins  v.  Hudson,  5  Binn  (Pa.)  505;  Moss's  Appeal, 
35  Pa.  St.  102;  Shirreff  v.  Vye,  24  N.  B.  572;  Thomas  r.  Mirehouse,  19  Q.  B. 
1).  503  ;  and  he  may  sue  the  officer  therefor  if  he  does  not  voluntarily  pay  it, 
Thomas  v.  Mirehouse,  and  SiiirrclT  c.  Vye,  sujira. 

It  has  been  held  that  the  landlord  may  distrain  goods  taken  on  execution, 
if  they  are  released  upon  interpleader  at  instance  of  third  party  claiming 
them,  the  landlord's  claim  being  held  superior  to  the  claimant's  in  inter- 
pleader.    Gilliam  j;.  Tobias,  11  Phila.  313. 

In  Illinois  a  landlord  may  replevy  crops  upon  which  he  has  lien  from 
officer  who  has  levied  an  execution  upon  them.     Wetsel  c.  Mayers,  91  111.497. 

G1J4 


Cii.  XI.  S.  9.]  EXEMPTIONS   FROM   DISTRESS.  *443 

*  damage  feasant,  or  by  the  sheriff  under  an  execu-  [*443] 
tion,  attachment  or  extent,  cannot  be  distrained  for 
rent  whilst  in  such  custody  (m). 

But  by  8  Ann.  c.  14,  s.  1,  no  goods  taken  on  any  lands  leased 
for  life,  years,  at  will,  or  otherwise,  shall  be  taken  in  execu- 
tion^ unless  the  party  at  ivlw^e  suit  execution  issued,  before 
removal  of  the  goods,  pay  to  the  landlord  the  arrears  of  rent, 
if  not  exceeding  one  year's  rent ;  and  if  more,  then  the 
amount  of  one  year's  rent,  due  at  the  time  of  the  execu- 
tion (a:).  There  are  similar  enactments,  with  variations,  in 
the  acts  relating  to  the  County  Courts  (^),  and  the  Court  of 
Admiralty  (z). 

Fraudulent  and  irregular  executions.  —  If  the  sale  of  goods 
under  an  execution  be  fraudulent,  as  where  a  fictitious  bill 
of  sale  is  made,  and  the  goods  remain  on  the  premises,  they 
may  be  distrained  for  rent  (a).  And  where  the  execution 
was  irregular,  as  where  a  sheriff's  officer  executed  a  writ  of 
fieri  facias  by  going  to  the  house  and  informing  the  debtor 
he  came  to  levy  on  his  goods,  and  laying  his  hand  on  a  table, 
said,  "  I  take  this  table,"  and  then  locked  up  the  warrant  in 
the  table-drawer,  took  the  key  and  went  away,  without  leav- 
ing any  person  in  possession  —  and  after  the  writ  was  re- 
turnable the  landlord  distrained ;  it  was  held,  that  it  was  a 
lawful  distress  (6).  The  goods  may  be  distrained  if  the  exe- 
cution has  been  waived  (<?).  Where  a  sheriff's  officer,  being 
in  possession  of  a  tenant's  effects  under  an  outlawry,  made  a 
distress  on  them  for  rent,  and  on  the  request  of  the  landlord 
sold  the  goods  distrained,  and  afterwards  the  outlawry  was 
reversed,  the  officer  was  held  liable  to  pay  the  produce  of  the 
goods  to  the  landlord,  for  they  were  not  in  custodia  legis, 
the  judgment  being  mere  waste  paper  (fZ). 

Messenger  in  bankruptcy.  —  Goods  seized  by  a  messenger 

(u)  Peacock  v.  Purvis,  2  Brod.  &  B.  (2)  24  Vict.  c.  10,  s.  16  ;  post,  Sect. 

362  ;  Wright  v.  Dewes,  1  A.  &  E.  641 ;  11  (c). 

Wliarton  v.  Naylor,  12  Q.  B.  673  ;  6  («)  Smith  v.  Russell,  3  Taunt.  400. 

D.  &  L.  136 ;  Smith  L.  &  T.  204  (2nd  {b)  Blades  v.  Arundale,  1  M.  &  S. 

ed.).  711. 

(x)  See  post.  Sect.  11  (a).  (c)  Seven  v.  Mihil,  1  Ld.  Ken.  370. 

Cv)  19  &  20  Vict.  c.  108,  s.  75 ;  post,  (d)  St.  John's   College,  Oxford  v. 

Sect.  11  (b).  Murcott,  7  T.  R.  259. 

695 


*444  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  9. 

under  a  bankruptcy  have  been  held  not  to  be  privileged  as 
being  in  the  custody  of  the  law  (e).^ 

Receiver.  —  In  Sutton  v.  Rees,  a  receiver  in  a  legatees' 
suit  advertised  furniture  in  a  leasehold  house  for  sale.  The 
superior  landlord  claimed  rent,  but  took  no  other  steps,  and 
the  furniture  was  sold.  It  Avas  held,  that  the  landlord  had 
no  lien  on  the  proceeds  of  the  sale,  but  must  come  in  with 
the  other  creditors,  and  it  was  said  that  he  should  have  dis- 
trained, first  obtaining  leave  of  the  court  so  to  do  (/). 

In  cases  of  extents.  — A  distinction  has  been  taken  between 
proceedings  at  the  suit  and  for  the  benefit  of  the 
[*444]  Crown,  and  an  outlawry  in  a  civil  suit  (,(/).  An  *  im- 
mediate extent  against  a  Crown  debtor  tested  after 
a  distress  taken  for  rent  justly  due  to  the  landlord  with 
notice  of  the  tenant  being  the  Crown  debtor,  and  appraise- 
ment of  the  goods  and  chattels,  but  before  sale,  prevails 
against  the  distress  (K)  :  so  where  a  man  was  outlawed  and 
an  extent  issued  thereupon,  and  his  goods  were  seized, 
although  the  landlord  distrained  three  days  before  the 
extent,  it  was  held  that  he  was  not  entitled  to  any  part  of 
the  rent  due,  under  8  Ann.  c.  14  («').  Where  an  officer 
entered  under  an  extent,  and  improperly  continued  on  the 
premises  for  a  longer  period  than  he  ought,  the  court  would 
not  permit  the  rent  accruing  subsequently  to  the  seizure  to 
be  paid  out  of  the  proceeds ;  but  left  the  landlord  to  his 
action  against  either  the  tenant  for  nse  and  occupation,  or 
the  officer  for  wrongfully  continuing  on  the  premises  (/<•), 
The  landlord  of  premises  on  which  goods  have  been  seized 
under  an  extent  in  aid  is  not  entitled,  under  8  Ann.  c.  14,  s. 
1,  to  call  on  the  sheriff  to  pay  a  year's  rent  due  before  the 
teste  of  the  writ  (/). 

(c)  Brings   V.    Sowry,  8  M.  &  W.  College,  Oxford  r.  Murcott,  7  T.  R. 

279;    Newton    v.    Seott,  9   M.  &   W.  259. 

434;  10  Id.  471  ;  ]'liillii)s  r.  Sliervill,  (//)  Rex  v.  Cotton,  Parker,  112. 

0  Q.  B.  944.  (/)  Rex  v.  Sotlierby,  Bunh.  5. 

(/)  In   re    Sutton    and    Sutton    v.  (A)  liex  v.  Hill,  ti  I'riee,  19;  Lane 

Rees,  32  L.  J.,  Ch.  437 ;  9  Jur.,  N.  S.  r.  Crockett,  7    Id.  50(5;    Harrison    r. 

450.  Barry,  7  Id.  0!»0. 

Q/)  Imp.   Sheriff,   171  ;    St.  .lolm's  (/)  Rex  r.  Deeaux,  2  I'rioe,  17. 

''■  Under  the  late  I'liited  States  h.-itikniiitcv  law,  jirnperty  licid  hy  an  as- 
signee was  not  liahle  to  di.strcs.s.     I\I()rj,';iM  r.  Caiiiiihi.'ll,  22  Wall,  381. 

CiUG 


Cii.  XI.  S.  9.]  EXEMPTIONS   FEOM  DISTRESS.  *445 

Grooving  corn  seized  and  sold  under  a  fi.  fa.  —  Formerly, 
where  a  tenant's  growing  corn  was  seized  and  sold  under  a 
fi.  fa.  pursuant  to  2  W.  &  M.  c.  5,  s.  3  (7?i),  and  the  vendee 
permitted  it  to  remain  till  it  was  ripe,  and  then  cut  it,  the 
landlord  could  not  distrain  on  it  for  rent  before  the  exi)ira- 
tion  of  a  reasonable  time  for  the  vendee  to  remove  and  carry 
it  away ;  such  corn,  whilst  in  the  possession  of  the  sheriff's 
vendee,  being  considered  as  in  the  custody  of  the  law  (m). 
So  the  landlord  could  not  distrain  for  rent  on  any  corn,  hay, 
straw  or  other  agricultural  produce,  sold  by  the  sheriff  under 
an  execution,  subject  to  a  special  agreement  with  the  pur- 
chaser for  him  to  use  and  consume  the  same  on  the  demised 
premises  according  to  the  terms  of  the  lease  or  agreement, 
or  the  custom  of  the  country  (o). 

14  &  15  Vict.  c.  25,  s.  2.  Crops  sold  under  fi.  fa.  liable,  so  long 
as  on  farm.  —  Now,  by  14  &  15  Vict.  c.  25,  s.  2,  "  in  case  all 
or  any  part  of  the  growing  crops  of  the  tenant  of  any  farm 
or  lands  shall  be  seized  and  sold  by  any  sheriff  or  other 
officer  by  virtue  of  any  writ  of  fieri  facias,  or  other  writ  of 
execution,  such  crops,  so  long  as  the  same  shall  remain  on 
the  farms  or  lands,  shall,  in  default  of  sufficient  distress  of 
the  goods  and  chattels  of  the  tenant,  be  liable  to  the  rent 
which  may  accrue  and  become  due  to  the  landlord  after  any 
such  seizure  and  sale,  and  to  the  remedies  by  distress  for 
recovery  of  such  rent;  and  that  notwithstanding  any  bar- 
gain and  sale  or  assignment  which  may  have  been  made  or 
executed  of  such  growing  crops  by  any  such  sheriff  or 
other  officer."  In  consequence  of  this  enactment, 
*  which  was  passed  in  order  to  reverse  the  law  as  [*445] 
laid  down  in  Wharton  v.  Naylor  (p'),  the  tenant's 
crops  can  only  be  sold  under  an  execution  for  their  value 
minus  the  rent  to  which  they  may  become  liable,  and  the 
costs  of  a  distress ;  but  the  landlord  may  afterwards  abstain 


(m)  Ante,  436.  XI.,  Sect.  6  (b).     This  act  does  not 

(n)  Wliarton  v.  Naylor,   12   Q.  B.  apply  to    sales    under  distresses   for 

673;   6   D.    &   L.   136;    Peacock    v.  rent;    Ridgway    v.    Ld.    Stafford,   6 

Purvis,  2  Brod.  &  B.  362 ;  Wright  v.  Exch.  404. 

Dewes,  1  A.  &  E.  641.  (jo)  12  Q.  B.  673. 

(o)  56   Geo.   3,  c.  50;  ante,   Chap. 

697 


*445  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  9. 

from  distraining,  and  so  in  effect  benefit  the  purcliaser  pro 
tanto  at  the  tenant's  expense ;  after  which  he  may  sue  the 
tenant  for  such  rent,  or  distrain  upon  his  other  goods  for 
the  amount. 

(f)  The  Goods  of  Lodgers. 

Lodgers'  Goods  Protection  Act.  —  At  common  law,  as  we  have 
seen,  the  goods  of  third  persons  are  liable  to  be  distrained  for 
rent,  subject  to  the  exceptions  in  the  case  of  goods  delivered 
to  a  person  in  the  way  of  his  trade,  and  other  cases.  An 
important  statutory  exception  has  been  made  in  favour  of 
lodgers  by  an  act  passed  in  1871,  34  &  35  Vict.  c.  79.i  By 
this  act,  which  does  not  extend  to  Scotland  (5'),  after  reciting 
that  "  lodgers  are  subjected  to  great  loss  and  injustice  by  the 
exercise  of  the  powers  possessed  by  the  superior  landlord  to 
levy  a  distress  on  their  furniture,  goods  and  chattels,  for 
arrears  of  rent  due  to  such  superior  landlord  by  his  imme- 
diate lessee  or  tensint,"  it  is  enacted  (sect.  1),  that  "if  any 
superior  landlord  shall  levy  or  authorize  to  be  levied  a  dis- 
tress on  any  furniture,  goods,  or  chattels  of  any  lodger  for 
arrears  of  rent  due  to  such  superior  landlord  by  his  imme- 
diate tenant,  such  lodger  may  serve  such  superior  landlord, 
or  the  bailiff  or  other  person  employed  b}'  him  to  levy  such 
distress,  with  a  declaration  in  writing  (r)  made  by  such 
lodger,  setting  forth  that  such  immediate  tenant  has  no  right 
of  property  or  beneficial  interest  in  the  furniture,  goods,  or 
chattels  so  distrained  or  threatened  to  be  distrained  upon, 
and  that  such  furniture,  goods,  or  chattels  are  the  property 
or  in  the  lawful  possession  of  such  lodger ;  and  also  setting 
forth  whether  any  and  what  rent  is  due  and  for  what  period 
from  such  lodger  to  his  immediate  landlord ;  and  such  lodger 

(g)  Sect.  4.  (r)  See  Form  of  Declaration,  Ap- 

pendix D.,  No.  12. 

^Lodgers.  —  The  goods  of  lodgers  arc  liable  to  distress  in  most  of  the 
American  states. 

In  Nona  Sr.otia  and  Ontario  tliere  are  special  provisions  for  the  protection 
of  lodgers  whose  goods  are  distrained  upon  their  giving  written  notice,  and 
paying  their  rent  in  arrear  to  the  superior  landlord  (Rev.  Sts.  Nova  Scotia, 
cli.  120,  sec.  G;  Rev.  Sts.  Ontario,  v.\\.  143,  sec.  44).  See  as  to  property  of 
boarders,  ante,  (c),  notes. 

698 


Ch.  XI.  S.  9.]  EXEMPTIONS   FROM   DISTRESS.  *446 

may  pay  to  the  superior  landlord,  or  to  the  l)ailiff  or  other 
person  employed  by  him  as  aforesaid,  the  rent,  if  any,  so  due 
as  last  aforesaid, .  or  so  much  thereof  as  shall  be  sufficient  to 
discharge  the  claim  of  such  superior  landlord  (s). 

Inventory.  —  "  And  to  such  declaration  shall  be  annexed  a 
correct  inventory,  subscribed  by  the  lodger,  of  the  furniture, 
goods,  and  chattels  referred  to  in  the  declaration ;  and  if  any 
lodger  shall  make  or  subscribe  such  declaration  and 
inventory,  knowing  the  same  or  either  of  *  them  to  [*446] 
be  untrue  in  any  material  particular,  he  shall  be 
deemed  guilty  of  a  misdemeanor." 

Declaration  inoperative  against  subsequent  distress.  —  A  dec- 
laration under  this  section  is  no  protection  unless  it  has 
been  made  after  the  distress  has  been  levied  or  authorized  or 
threatened,  and  it  is  inoperative  against  a  distress  subse- 
quently levied  which  has  not  been  authorized  or  threatened 
before  the  declaration  is  made  So  it  was  held  by  the  Court 
of  Appeal  in  Thwaites  v.  Wilding  (0?  on  the  very  reasonable 
ground — though  the  decision  may  seem  rather  hard  upon 
lodgers  —  that  the  conditions  of  the  statute  must  be  rigidly 
complied  with  by  the  lodger,  in  order  to  deprive  the  landlord 
of  his  remedy  at  common  law.  The  declaration  need  not 
state  that  no  rent  is  owing,  if  such  be  the  case,  nor  even  that 
the  declarant  is  a  lodger.  Ex  parte  Harris,  34  W.  R.  132; 
53  L.  T.  655. 

If  distress  proceeded  with.  —  By  sect.  2,  "  if  any  superior 
landlord,  or  any  bailiff  or  other  person  employed  by  him, 
shall,  after  being  served  with  the  before-mentioned  declara- 
tion and  inventory,  and  after  the  lodger  shall  have  paid  or 
tendered  to  such  superior  landlord,  bailiff,  or  other  person, 
the  rent,  if  any,  which  by  the  last  preceding  section  such 
lodger  is  authorized  to  pay,  shall  levy  or  proceed  with  a 
distress  on  the  furniture,  goods,  or  chattels  of   the  lodger, 

(s)  By  sect.  3,  "  any  payment  made  (0  Thwaites  v.  Wilding,  L.  R.,  12 

by  any  lodger  pursuant  to  the  first  Q.  B.  D.  4 ;  53  L.  J.,  Q.  B.  1 ;  49  L. 
section  of  this  act  shall  be  deemed  a  T.  396;  32  W.  R.  80,  C.  A.,  affirming 
valid  payment  of  any  rent  due  from  decision  below,  L.  R.,  11  Q.  B.  D. 
him  to  his  immediate  landlord."  421 ;    52  L.  J.,  Q.  B.  734 ;  49  L.  T. 

201. 

699 


*447  DISTRESS   FOR   RENT.  [Ch.  XL  S.  9. 

such  superior  landlord,  bailiff,  or  other  person  shall  be  deemed 
guilty  of  an  illegal  distress,  and  the  lodger  may  apply  to  a 
justice  of  the  peace  for  an  order  for  the  restoration  to  him  of 
such  goods;  and  such  application  shall  be  heard  before  a 
stipendiary  magistrate,  or  before  two  justices  in  places  where 
there  is  no  stipendiary  magistrate,  and  such  magistrate  or 
justices  shall  inquire  into  the  truth  of  such  declaration  and 
inventory,  and  shall  make  such  order  for  the  recovery  of  the 
goods  or  otherwise  as  to  him  or  them  may  seem  just,  and  the 
superior  landlord  shall  also  be  liable  to  an  action  at  law  at 
the  suit  of  the  lodger,  in  which  action  the  truth  of  the  decla- 
ration and  inventory  may  likewise  be  inquired  into." 

Who  is  a  "lodger."  —  It  is  clear  that  '•'lodger"  in  this  act 
cannot  mean  "  sub-tenant."  On  the  other  hand,  every  lodger 
is  to  some  extent  a  "  tenant,"  and  a  person  occupying  by  far 
the  greater  part  of  a  house  under  a  contract  in  writing  was 
held  to  be  a  "  lodger"  within  the  act  in  Phillips  v.  Henson  (m), 
Avhere  the  only  rooms  retained  by  the  mesne  landlord  were 
"a  housekeeper's  room  on  the  basement  and  two  or  tliree  empty 
attics  and  a  stable."  Nor  is  it  necessary  that  the  mesne  land- 
lord should  even  reside  on  the  premises;  it  is  enough  if  he 
retain  by  himself  or  an  agent  such  control  and  dominion  over 
them  as  the  master  of  a  house  usually  has  (a-).  The 
[*447]  question  whether  the  party  claiming  *  under  the  act 
is  a  "  lodger "  or  not  ought  not  to  be  left  to  the 
jury  (?/)  in  an  action  for  illegal  distress ;  though  it  is  a 
question  for  determination  by  justices  upon  the  hearing  of 
an  application  for  an  order  under  the  statute  (2). 

The  lodger  must  sleep  on  the  premises.  —  The  lodger  must 
sleep  and  reside  on  the  premises,  and  a  person- occupying  the 
premises  in  daytime  only  for  the  purpose  of  his  business  is 
not  a  "lodger"  within  the  statute  (a). 

(u)  L.  R.,  .3  C.  P.  D.  20 ;  47  L.  J.,  B.  7  ;  45  L.  T.  426 ;  30  W.  R.  115,  C. 

C.  P.  273;  26  W.  R.  214,  per  Grove  A.;  Ness  v.  Stevenson,  L.  R.,  9  Q!  B. 

and  Lindley,  JJ. ;  the  latter  learned  D.  245. 

judne  18  reported  as  observing  that  (y)  lb. 

"  probably  the  act  would   not  apply  (s)  Ness  v.  Stephenson,  svpra,  note 

to  an  under-tenant  who   has   the  ex-  (a:). 

elusive     possession     of     the     whole  («)  TIeawood  v.  Bone,  L.  R.,  13  Q. 

house."  B.  D.  170;  51  L.  T.  125. 

(.r)  Morton  v.  Palmer,  51  L.  J.,  Q. 

700 


Cn.  XI.  S.  9.]  EXEMrTIONS   FROM  DISTRESS.  *447 

A  lodger  may  sue  for  selling  before  five  days.  —  If  the  land- 
lord sell  before  the  five  days  within  which  by  the  statute  of 
William  and  Mary  [post,  Sect.  8]  the  tenant  has  the  power 
to  replevy,  the  lodger  has  a  right  of  action  against  him,  and 
this  although  the  declaration  under  the  statute  may  not  have 
been  served  till  after  the  sale  (/>)• 

(g)  Railway  Rolling  Stock. 

Marked  with  owner's  name,  exempt.  —  Upon  a  principle  simi- 
lar to  that  of  the  Lodgers'  Goods  Protection  Act,  1871,  rail- 
way rolling  stock  is  protected  from  distress,  in  cases  where  it 
is  not  the  actual  property  of  the  tenant,  by  the  Railway 
Rolling  Stock  Protection  Act,  1872  (35  &  36  Vict.  c.  50). 
By  sect.  3  of  this  act,  '•'  rolling  stock  (c)  being  in  a  work  (c7) 
shall  not  be  liable  to  distress  for  rent  (e)  payable  by  a  ten- 
ant (/)  of  the  work,  if  such  rolling  stock  is  not  the  actual 
property  of  such  tenant,  and  has  upon  it  a  distinguishing 
metal  plate  affixed  to  a  conspicuous  part  thereof,  or  a  dis- 
tinguishing brand  or  other  mark  conspicuously  impressed 
or  made  thereon,  sufficiently  indicating  the  actual  owner 
thereof." 

Restoration.  —  By  sect.  4,  "  where  any  such  rolling  stock 
as  aforesaid  is  distrained,  a  court  of  summary  jurisdiction  Qj') 
may  make  against  the  landlord  such  summary  order  for 
restoration  of  the  rolling  stock,  or  for  payment  of  the  real 


(b)  Sharp  V.  Fowle,  L.  R.,  12  Q.  alty  or  other  reservation  in  the  nature 
B.  D.  385 ;  53  L.  J.,  Q.  B.  309  ;  50  L.  of  rent." 

T.   758 ;    32   W.   R.   539.     Here  the  (/)  By  sect.  2,  this   "  includes   a 

damages  had  been   agreed   upon   as  lessee,    sublessee,    or    other    person 

17/.,  but  the  action  would  be  for  ir-  having  an  interest  in  a  work  under  a 

regular  distress,  and  proof  of  special  lease  or  agreement,  or  by   use   and 

damage   would   be   necessary.       See  occupation,  or  being  otherwise  liable 

Rodgers  v.  Parker,  18  C.  B.  112.  to  pay  rent  in  respect  of  a  work." 

(c)  By  sect.  2,  this  "includes  wag-  (i^)  By  sect.  2,  this  "means  any 
ons,  trucks,  carriages  of  all  kinds,  justices  of  the  peace,  metropolitan 
and  locomotive  engines  used  on  rail-  police  magistrate,  stipendiary  magis- 
ways."  trate,   sheriff,    sheriff    substitute,   or 

(d)  By  sec.  2,  this  "includes  any  other  magistrate  or  officer,  by  what- 
colliery,  quarry,  mine,  manufactory,  ever  name  called,  who  is  capable  of 
warehouse,  wharf,  pier,  or  jetty  in  or  exercising  jurisdiction  in  summary 
on  which  is  any  railway  siding."  proceedings  for  the  recovery  of  pen- 

(e)  By  sect.  2,  this  "  includes  roy-  alties." 

701 


*448  DISTRESS    FOR   RENT.  [Ch.  XI.  S.  d. 

value  thereof,  and  respecting  costs  or  otherwise,  and  may 
make  against  the  person  distraining  such  order  in  the  matter 
and  respecting  costs  as  to  the  court  seems  just." 

Tenant's  interest  not  protected.  —  By  sect.  5,  "  this  act  shall 
not  extend  to  protect  from  distress  the  interest  which 
any  tenant  may  have  in  any  rolling  stock  otherwise 
[*448]  *  protected  under  this  act,  but  such  interest  may  be 
distrained  upon  by  the  landlord,  and  disposed  of  in 
the  same  manner  as  the  whole  interest  of  such  tenant,  if  he 
had  possessed  the  same  ;  and,  in  case  of  disagreement  between 
the  landlord  and  the  parties  claiming  such  rolling  stock  as  to 
the  mode  of  disposing  of  such  interest,  the  same  shall  be  set- 
tled by  the  court  of  summary  jurisdiction ;  and  the  court 
shall,  on  the  application  of  either  party,  make  such  order 
therein  as  to  the  court  shall  seem  fit." 

Appeal  to  quarter  sessions.  —  By  sect.  6,  "  If  any  party 
thinks  himself  aggrieved  by  any  order  or  adjudication  of  a 
court  of  summary  jurisdiction  under  this  act,  or  by  dismissal 
of  his  complaint  by  any  such  court,  he  may  appeal  therefrom, 
subject  to  the  conditions  and  regulations  following;  that  is 
to  say :  — 

(1)  The  appeal  shall  be  made  to  some  court  of  general  or 

quarter  sessions  for  the  county  or  place  in  which 
the  cause  of  appeal  arises,  holden  not  less  than 
fifteen  days  and  (unless  adjourned  by  the  Court  of 
Appeal)  not  more  than  four  months  after  the  decis- 
ion of  the  court  of  summary  jurisdiction : 

(2)  The  appellant  shall,  within  seven  days  after  the  cause 

of  appeal  has  arisen,  give  notice  to  the  other  party 
and  to  the  court  of  summary  jurisdiction  of  his  in- 
tention to  appeal,  and  the  ground  thereof: 

(3)  The    appellant   shall,  immediately  after   such  notice, 

enter  into  a  recognizance  before  a  justice  of  the 
peace,  witli  two  sufficient  sureties  conditioned  per- 
sonally to  try  such  appeal,  and  to  abide  the  judg- 
ment of  the  court  thereon,  and  to  pay  such  costs  as 
may  be  awarded  by  the  court,  or  give  such  other 
security  by  deposit  of  money  or  otherwise,  as  the 
justice  thinks  lit  to  allow." 
702 


Cu.  XI.  S.  9.]  EXEMPTIONS   FROM   DISTRESS.  *449 

Exclusion  of  certiorari.  —  By  sect.  7,  "  no  order  or  conviction 
of  a  court  of  summary  jurisdiction  under  tliis  act  shall  be 
quashed  for  want  of  form,  or  be  removed  by  certiorari  or 
otherwise  (at  the  instance  either  of  the  Crown  or  of  any 
private  party)  into  any  superior  court." 

(h)  Hired  Machinery  and  Breeding  Stock. 

If  the  Agricultural  Holdings  Act  applies  (A),  there  is  an 
absolute  exemption  of  hired  machinery  and  breeding  stock. 
For  it  is  })rovided  by  the  second  paragraph  of  s.  45  of  that 
act  that  "  agricultural  or  other  machinery  which  is  the  bona 
fide  property  of  a  person  other  than  the  tenant,  and  is  on 
the  premises  of  the  tenant  under  a  bona  fide  agreement  with 
him  for  the  hire  or  use  thereof  in  the  conduct  of  his 
*  business,  and  live  stock  of  all  kinds  which  is  the  [*449] 
bona  fide  property  of  a  person  other  than  the  tenant, 
and  is  on  the  premises  of  the  tenant  solely  for  breeding  j5ur- 
poses,  shall  not  be  distrained  for  rent  in  arrear."  These 
words  will,  it  is  conceived,  protect  such  machinery  as  is,  in 
accordance  with  a  common  practice,  on  the  premises  under 
an  agreement  that  it  be  paid  for,  it  shall  be  and  remain  the 
property  of  the  person  letting  it  out  (i). 

(i)    Cattle^  Beasts  of  the  Plough^  and  Sheep. 

By  51  Hen.  3,  stat.  4,  no  man  "  shall  be  distrained  by  his 
beasts  that  gain  his  land,  nor  by  his  sheep,  while  there  is 
another  sufficient  distress  to  be  found  (except  for  damage 
feasant)  "  (/c).  This  is  in  affirmance  of  the  common  law  (T). 
Cart  colts  and  young  steers,  not  broken  in  or  used  for  har- 
ness or  the  plough,  are  not  privileged  from  distress  as  beasts 
which  gain  the  land  (?«).  Beasts  of  the  plough  may  be 
distrained  if  the  only  other  subject  of  distress  is  growing 
crops,  because  the  landlord  is  entitled  to  distrain  whatever  is 
immediately  available,  and  to  hold  the  growing  crops  for  the 

(A)  Sect.  5,  p.  430,  ante.  (I)  2  Inst.  132. 

(0  See  form,  Lely  and  Pearce-Edg-  {in)  Keen  v.  Priest,  4  H.  &  N.  23G  ; 

cumbe's  A^.  Hold.  Act,  p.  299.  28  L.  J.,  Ex.  157. 

(Jc)  Davies  v.  Aston,  1  C.  B.  746 ;  3 
D.  &  L.  188. 

703 


*450  DISTRESS   FOP.   RENT.  [Cn.  XI.  S.  9. 

residue  (w).  If  a  landlord  distrain,  inter  alia,  his  tenant's 
cattle  and  beasts  of  the  plough  for  rent  in  arrear.  and  it 
appear  after  the  sale  that  there  would  have  been  sufficient 
to  satisfy  the  arrears  and  expenses  without  taking  or  selling 
such  cattle,  such  distress  is  not  thereby  proved  to  be  an 
illegal  distress,  contrary  to  the  above  statute^  if  there  were 
reasonable  grounds  for  supposing  (as  from  the  appraisement 
of  proper  and  competent  persons  at  the  time  of  the  taking) 
that  without  the  taking  of  the  beasts  of  the  plough  there 
would  not  have  been  a  sufficient  distress  (o)  ;  and  where 
beasts  of  the  plough  are  lawfully  taken  on  a  distress,  the  sale 
of  them  need  not  be  postponed  to  that  of  other  goods  (o). 

Sheep  of  sub-tenant  privileged.  —  The  sheep  of  a  suh-tenmit 
are  privileged  from  distress  for  rent  if  there  are  other  goods 
on  the  premises  sufficient  to  satisfy  the  rent,  whether  belong- 
ing to  such  subtenant  or  to  any  other  person  (j'j).  The 
owner  of  sheep  seized  and  sold  under  a  distress  for  rent, 
which  was  unlawful  because  there  were  other  goods  on  the 
premises  belonging  to  him  which  might  have  been  distrained 
for  the  same  rent,  is  entitled  to  recover  from  the  distrainer, 
not  merely  nominal  damages,  but  the  full  value  of  the  sheep 

so  seized  (^j)). 
[*450]         *  When  cattle  may  be  distrained.  —  Cattle  which  are 

upon  land  by  way  of  agisting  may  be  distrained  for 
rent  (^)  :  and  where  a  stranger  put  in  his  beasts  to  graze  for 
a  night,  by  the  consent  of  the  lessor  and  licence  of  the  lessee, 
it  was  held,  that  the  lessor  might  distrain  them  for  rent  due 
out  of  those  lands  which  he  consented  that  the  beasts  should 
graze  on  ;  because  such  consent  was  no  waiver  of  his  right  to 
distrain,  unless  it  had  been  expressly  agreed  to;  and  being 
Ijut  a  i)arol  agreement,  it  could  not  alter  the  original  contract 
between  the  lessor  and  lessee,  from  which  the  power  to  dis- 
train arises  (r).  It  seems  to  liave  been  held  in  one  case  that 
cattle  wliich  are  being  driven  to  a  market  or  fair,  and  are  put 

(n)  Piggott  V.  Birtlcs,  1  M.  &  W.  (/))  Keen  v.  Priest,  4  II.  &  N.  230; 

441.  28  L.  J.,  Ex.  157. 

(o)  Jt-nner  v.  YoUand,  2   Cliit.  K.  (7)  IJoll.  Abr.  GG9. 

167  ;  0  Price,  5.  (/ )  I'awkis  v.  Joyco,  3  Lev.  260 ;  2 

Vent.  60;  2  Wms.  Saund.  290,  n.  7. 

704 


Ch.  XI.  S.  '.).}  EXEMPTIONS   FKOM   DISTRESS.  *451 

into  pasture  on  the  way  for  one  night,  are  privileged  from 
distress  (s).  If  the  landlord  come  to  distrain,  and  the  ten- 
ant, seeing  him,. drive  cattle  off  the  land,  the  landlord  may 
follow  the  beasts  and  distrain  them  out  of  the  premises,  if 
he  had  once  a  view  of  the  cattle  on  his  land ;  but  if  the 
beasts  go  off  the  land  of  themselves  before  he  observes  them, 
he  cannot  distrain  them  afterwards  Q') ;  though  if  the  dis- 
trainer once  enter  the  premises  to  distrain  the  cattle,  it  seems 
that  they  cannot  afterwards  be  driven  off  to  prevent  a  dis- 
tress (?t). 

Defects  of  fences.  —  Where  beasts  escape,  and  come  upon 
land  by  the  negligence  or  default  of  their  owner,  and  are 
trespassers  there,  they  may  be  distrained  immediately  by  the 
landlord  for  rent  in  arrear  (a;)  ;  but  where  they  come  upon 
land  by  the  insufficiency  of  fences,  which  the  tenant  or  his 
landlord  ought  to  repair,  the  lessor  cannot  distrain  such 
beasts  till  they  have  been  levant  and  couchant ;  that  is,  they 
must  be  lying  down  and  rising  up  on  the  premises  for  a  night 
and  a  day  without  pursuit  made  by  the  owner  of  them,  — 
and  after  actual  notice  has  been  given  to  the  owner  that  they 
are  there,  and  he  has  neglected  to  remove  them  (?/),  Where 
cattle  passing  along  a  public  highway  stray  into  an  adjoining 
field  through  defect  of  fences,  the  owner  of  the  cattle  is  bound 
to  remove  them  within  a  reasonable  time,  until  the  expira- 
tion of  which  they  cannot  lawfully  be  distrained  for  damage 
feasant  (s).  What  is  a  reasonable  time  is  a  question  for  the 
jury  with  reference  to  all  the  surrounding  circumstances  (s). 

In  Singleton  v.  Williamson,  the  plaintiff  was  owner  of  a 
close  A.,  and  the  defendant  was  owner  of  closes  B.  and  C. 
Between  A.  and  B.  there  was  a  fence  which,  as  against  the 
owner  of  A.,  the  owner  of  B.  was  bound  to  keep  in  repair, 
but  which  he  had  neglected  to  do.  Between  B.  and 
C.  *  there  was  a  sufficient  fence.  The  cattle  of  the  [*451] 
plaintiff  strayed  from  A.  through  a  gap  into  B.,  and 

(s)  Tate  V.  Gleed,  2  Wms.  Saund.  note  (301)  ;  Kemp  r.  Crawes,  2  Lutw. 
290,  n.  (/).  1577;  1  Ld.  Raym.  168;  Bullen,  103. 

Q)  Co.  Lit.  161  a.  (y)  Poole  v.  Lonoueville,  2  Saund. 

(«)  Clement  v.  Milner,  3  Esp.  95.  289;  Smith  L.  &  T.  204  (2nd  ed.). 

(x)  Gilb.  Distr.  45;  Co.  Lit.  47  a,  (z)  Goodwin  v.  Clievcley,  4   PL  & 

N.  631  ;  28  L.  J.,  Ex.  298. 

705 


*451  DISTRESS   FOR   RENT.  [Cii.  XI.  S.  9. 

there  breaking  down  the  fence  between  B.  and  C,  were 
distrained  by  the  defendant  as,  he  alleged,  damage  feasant  in 
C.  It  was  held,  in  trover  to  recover  the  cattle,  that  the  de- 
fendant had  no  right  to  distrain  the  cattle,  as  the  first  wrong- 
ful act  had  been  committed  by  himself  in  leaving  the  fence 
between  B.  and  A.  insufficiently  repaired,  the  natural  result 
of  which  wrongful  act  was  the  damage  complained  of ;  and 
that  the  jury  were  properly  directed  that  the  state  of  the 
fence  between  B.  and  C,  and  whether  or  not  the  cattle  were 
damage  feasant,  was  immaterial  (a). 

It  may  be  added  here  that  by  11  Geo.  2,  c.  19,  s.  8,  every 
landlord  may  take  and  seize,  as  a  distress  for  arrears  of  rent, 
any  cattle  or  stock  of  his  tenant  feeding  or  depasturing  upon 
anil  ^ommo7i  appendant  or  appurtenant,  or  any  ways  belong- 
ing to  any  part  of  the  premises  demised ;  and  that  by  56 
Geo.  3,  c.  50,  s.  6,  cattle  feeding  on  crops  sold  under  the 
provisions  of  that  act  cannot  be  distrained  (6). 

(j)    The   Tools  of  Trade. 

Tools  of  trade.  —  The  tools  and  imijlements  of  a  man's 
trade  are  absolutely  privileged  from  distress  for  rent,  if  they 
be  in  actual  use  at  the  time  ((^-').  If  they  be  not  in  actual 
use,  they  are  only  privileged,  in  case  there  be  no  other  dis- 
tress upon  the  premises  (jT).  But  the  distrainer  is  a  tres- 
passer ab  initio  only  as  to  those  particular  goods  which  were 
not  distrainable  ;  the  distress  may  be  valid  as  to  the  residue, 
and  a  satisfaction  pro  tanto  of  the  rent  (e).  Ledgers,  day- 
books, vouchers  and  other  business  papers  seem  not  to  be 
distrainable.  In  one  case  the  plaintiff  recovered  40s.  dam- 
ages in  trespass  against  the  landlord  and  his  l)roker  for  an 
illegal  seizure  thereof  undiir  a  distress  (/). 

Books.  —  In  commenting  upon  the  dictum  ol:  I^ord  Coke, 
that  the  books  of  a  scholar  would  be  privileged  from  distress, 

(a)  Sin^tlf'ton   v.  Williamson,  7   II.  (d)  Nargett  v.  Nias,  1  E.  &  E.  430; 

&  N.  410;  :n  L.  J.,  Ex.  17.  28  L.  J.,  Q.  B.  148. 

(/»)  See  this  act,  i<ost,  Appendix  A.  (e)  Harvey  v.  Pocock,  11   M.  &  W. 

(c)  Simpson    v.   Hartopp,   Willes,  740;  Davies  j).  Aston,  1  C.  B.  746;  8 

f)12;    1   Smith    L.    C.  489  (7th  ed.) ;  D.  &  L.  188. 

Gorton  v.  Faulkner,  4  T.  R.  505.  (/)  Gauntlett  v.  King,  3  C.  1?.,  X. 

S.  59. 

70(; 


Ch.  XI.  S.  9.]  EXEMPTIONS   FROM   DISTKESS.  *452 

Mr.  Smith  expresses  an  opinion  that  this  exemption  would 
include  a  lawyer's  books  also  (jf). 

Threshing  machine.  —  A  threshing  machine,  which  is  not  a 
fixture,  is  liable  to  a  distress,  unless  in  actual  use  at  the  time, 
or  there  be  other  sufficient  distress  (A).  If  a  man  has  two 
mill-stones,  and  one  only  is  in  use,  and  the  other  lies  by  not 
used,  it  may  be  distrained  for  rent  (i). 

*  (k)  Agisted  Stock}  [*452] 

Conditional  exemption.  —  If  the  Agricultural  Holdings  Act 
applies  (/c),  agisted  stock,  that  is  stock  taken  in  by  the  ten- 
ant to  be  fed,  in  some  parts  of  the  country  called  "  tacks,",  is 
conditionally  exempt  ivom  distress  under  some  circumstances. 
For  it  is  provided  by  s.  45  of  that  act  that  '•'  Where  live  stock 
[i.e.  by  s.  61  'any  animal  capable  of  being  distrained' (Z)] 
belonging  to  another  person  has  been  taken  in  by  the  tenant 
at  a  fair  price,  such  stock  shall  not  be  distrained  where  there 
is  other  sufficient  distress  to  be  found."  As  to  the  "  fair 
price"  it  has  been  held  not  to  be  necessary  that  there  should 
be  a  price  in  money,  and  that  an  agreement  "  milk  for  meat " 
as  it  is  termed,  i.e.  that  the  tenant  should  keep  for  his  own 
use  and  by  way  of  payment,  the  milk  of  agisted  cows,  is 
within  the  section  (wi). 

Limit  on  amount  recoverable.  —  The  section  goes  on  to  pro- 
vide that  if  the  live  stock  be  distrained  by  reason  of  other 
sufficient  distress  not  being  found,  "  there  shall  not  be  re- 
covered by  such  distress  a  sum  exceeding  the  amount  of  the 
price  so  agreed  to  be  paid  for  the  feeding,  or  if  any  part  of 
such  price  has  been  paid,  exceeding  the  amount  remaining 
unpaid." 

{(j)  Smith  L.  &  T.  205  (2iid  ed.).  pi.  6,  cited  in   Simpson   v.   Ilartopp, 

(Ji)  Fenton  v.  Logan,  0  Bing.  (576.       ■uhi  supra. 
As  to  absolute  exemption,  if  on  agri-  (t)  Sect.  5,  ante,  430. 

cultural  holding,  see  sub-s.  (/<),  ante,  (/)  See  Sub-s.  (U),  anfe,  439. 

448.  (»i)  London  &  Yorkshire  Bank  r. 

(?)  Year  Book,  Easter  T.  14  H.  8,       Belton :  Ross  and  Smith,  Claimants, 

L.  R.,  15  Q.  B.  D.  457. 

J  Agisted  stock.  — Cattle  taken  under  exclusive  right  to  feed  the  grass 
are  not  exempt  by  the  Agricultural  Holdings  Act.  Masters  v.  Green,  20  Q. 
B.  D.  807. 

[n  Pennsylvania  cattle  received  to  be  pastured  are  exempt  from  distress. 
Cadwahuier  r.  Tindall,  20  Pa.  St.  422. 

707 


*453  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  10. 

Power  of  owner  to  redeem.  —  Moreover  the  owner  of  the 
stock,  who  at  common  law  would  he  subject  to  the  common 
loss  of  third  persons,  has  a  special  statutory  privilege,  it  being 
further  enacted  that  "  it  shall  be  lawful  for  him  to  redeem  the 
stock  at  any  time  before  it  is  sold  (71)  by  paying  to  the  dis- 
trainer a  sum  equal  to  such  price  as  aforesaid,"  and  that  "any 
payment  so  made  to  the  distrainer  shall  be  in  full  discharge 
as  against  the  tenant  of  the  like  amount  which  would  be 
otherwise  due  from  the  owner  of  the  stock  to  the  tenant  in 
respect  of  the  price  of  the  feeding."  A  proviso  is  added  that 
so  long  as  any  portion  of  the  stock  shall  remain  on  the  hold- 
ing, the  right  to  distrain  such  portion  shall  continue  to  the 
full  extent  of  the  price  agreed  to  be  paid  (or  of  the  part,  if 
any,  remaining  unpaid),  for  the  feeding  of  the  whole. 


Sect.  10.  —  Proceedings  in  Distress. 

(a)    When  to  be  made. 
Must  be  betw^een  sunrise   and  sunset.  —  A  distress  for  rent 
cannot   be  made  after  sunset  and  before  sunrise,  however 

light  it  may  be  (o)  ^  —  because  the  tenant  would  not 
[*453]  have  *  any  notice  to  make  a  tender  of  his  rent,  which 

possibly  he  might  do  in  order  to  prevent  the  dis- 
tress ( 7^).  It  seems  doubtful  whether,  for  the  purposes  of  a 
distress,  sunrise  commences  with  the  first  beams  of  the  sun 
above  the  horizon,  or  when  the  middle  of  the  sun  is  upon 
the  horizon,  or  when  the  sun  has  completely  emerged ;  "•  per- 
sons who  distrain  should  bear  in  mind  that  a  distress  is  to 
be  made  in  the  daytime,  and  they  ought  not  to  go  so  near 
the  limits  as  to  raise  any  doubt  on  the  subject "  (</).  An 
almanack  is  not  evidence  of  the  time  of  sunrise  or  sunset  on 
a  particular  day,  nor  will  the  court  take  judicial  notice  of 

(n)  As  to  time  of  sale,  sec  Sect.  10,  ( ;,)  Gilb.  Distr.  50  ;  Co.  Lit.  142  a  ; 

sub-s.  (/i),  ]msl.  Aldfiihiir}-!!  v.  IVaple,  0  C.  &  P.  212. 

(o)  'ruttoii  V.  Darke  and  Nixon  v.  (^y)  Tutton  v.  Darke  and  Nixon  v. 

Freeman,  5   II.  &   N.  047  ;    Keen  i;.  Freeman,  supra. 
I'riest,  4   II.  &  N.  240,  Watson,  B. ; 
Smith  L.  &T.  219  (2nd  ed.). 

'  Russell  V.  Buckley,  25  N.  B.  204. 
708 


Cu.  Xr.  S.  10.]  PROCEEDINGS   IN   DISTRESS.  *453 

such  time  (z-)-  It  was  ruled  in  one  case,  where  rent  being 
due  to  the  defendant  from  the  plaintiff,  who  was  about  to 
remove  her  goods,  the  defendant  entered  the  house  after 
sunset,  and  for  some  hours  prevented  her  from  so  doing,  and 
locked  some  of  the  doors,  that  the  plaintiff  was  entitled  to  a 
verdict,  but  only  for  the  actual  damage  (s),  but  it  seems  that 
the  full  value  for  the  goods  distrained  ought  to  have  been 
given  (^). 

Must  not  be  till  after  rent-day.  —  A  distress  cannot  be  made 
the  same  day  on  which  the  rent  becomes  due,  for  it  is  not  in 
arrear  until  the  next  day  (w).^     The  custom  of  a  place  or  an 

(r)  5  H.  &  N.  647,  649,  per  Pollock,       N.  S.  280  ;  Attack  v.  Braniwell,  3  B. 
C.  B. ;    Collier  v.  Nokes,  2  C.  &  K.       &  S.  520  ;  32  L.  J.,  Q.  B.  146. 
1013.  («)  Duppa  V.  Mayo,  1  Saund.  287  ; 

(s)  Lamb  v.  Wall,  1  F.  &  F.  503.  2  Salk.  578 ;  Co.  Lit.  47  b,  note  (b)  ; 

(<)  Edmondson  v.  Nuttall,  17  C.  B.,       BuUen,  119  ;  Dibble  v.  Bowater,  2  E. 

&  B.  564. 


1  Distress;  \Arhen  may  be  made.  —  (a)  At  common  laio  not  till  rent  is  in 
arrears.  Slay  ?'.  Milton,  64  Tex.  421 ;  Scott  v.  Russell,  72  Ga.  35;  M'Kinney 
V.  Reader,  6  Watts  (Pa.)  34,  41  ;  Evans  v.  Herring,  27  N.  J.  L.  243;  Bailey 
V.  Wright,  3  M'Cord  (S.  C.)  484.  A  distress  made  on  last  day  of  term  at  noon 
is  too  soon.     Johnson  r.  Owens,  2  Cranch  C.  Ct.  160. 

Rent  payable  in  advance  may  be  distrained  for  as  soon  as  payable.  Con- 
way V.  Starkweather,  1  Denio  (N.  Y.)  113 ;  Beyer  v.  Fenstermacher,  2  Whart. 
95;  Anderson's  Appeal,  3  Pa.  St.  218;  Williams  v.  Howard,  3  Munf.  (Va.) 
277 ;  Peters  v.  Newkirk,  6  Cow.  (N.  Y.)  103 ;  Russell  v.  Doty,  4  Id.  576,  581 
(;3er  Sutherland,  J.). 

Taking  a  promissory  note  suspends,  but  does  not  destroy,  the  right  of 
distress,  Judge  v.  Fiskc,  2  Speers  (S.  C.)  436;  Fife  v.  Irving,  1  Rich.  L.  (S.  C.) 
226 ;  Snyder  v.  Kunklenian,  3  Pa.  487 ;  even  though  lessor  negotiates  the 
note  if  he  takes  it  up,  Giles  v.  Hays,  10  Md.  333;  unless  the  note  was  taken 
in  satisfaction  instead  of  security,  as  it  would  be  primci  facie  presumed  to  be 
in  some  states.  It  has  also  been  held  that  landlord,  after  he  has  recovered 
judgment,  may  distrain  if  it  is  unsatisfied.  Chipman  v.  Martin,  13  Johns. 
(N.  Y.)  240. 

Goods  transferred  or  levied  upon  before  rent  is  in  arrears  are  ordinarily 
thereby  exempted  from  the  landlord's  preference  lien.  A  voluntary  assignee, 
under  assignment  prior  to  accruing  of  rent,  can  hold  the  assigned  property  as 
against  the  landlord,  Burchard  v.  Rees,  1  Whart.  (Pa.)  377  ;  Belknap  v. 
Hastings,  1  Denio  (N.  Y.)  190 ;  and  landlord  has  no  valid  claim  to  be  paid 
one  year's  rent  out  of  proceeds  of  goods  levied  upon  prior  to  the  accruing  of 
the  rent,  Mc Willie  v.  Hudson,  Treadw.  Const.  (S.  C.)  119;  e.ven  though  goods 
after  levy  are  left  on  premises,  Ayres  v.  Depras,  2  Speers  (S.  C.)  367. 

Goods  removed  bona  Jide  from  premises,  before  rent  accrued,  are  thereby 
ordinarily  discharged  from  landlord's  lien.  Brown  v.  Duncan,  Harper's  L. 
(S.  C.)  337. 

709 


*454  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  10. 

agreement  between  the  landlord  and  tenant,  if  there  be  no 
objection  to  it  in  point  of  law,  may  indeed  empower  the  land- 
lord to  distrain  for  it  earlier,  for  conventio  vincit  legem  ;  as 
where  a  person  took  a  shop,  and  agreed  to  pay  a  year's  rent 
in  advance  (x).  So  where,  by  the  custom  of  the  country, 
half-a-y ear's  rent  became  due  on  the  day  on  which  the  tenant 
entered,  it  was  held  that  the  landlord  might  distrain  before 
the  half-year  had  expired  (ij').  On  the  other  hand,  the  right 
to  distrain  may  be  jpostjjotied  by  agreement,  ex.  gr.  until  the 
landlord  has  produced  his  receipt  for  the  rent  due  from  him 
to  the  superior  landlord  (2).  So  a  power  of  distress  may  be 
granted  after  demand  of  the  rent  from  the  tenant  personally, 
or  in  some  other  specified  manner ;  but  where  the  rent  is  to 
be  paid,  "■  being  lawfully  demanded,"  the  distress  itself  is  a 
sufficient  demand  (a). 

May  be  -writhin  six  months  after  lease  determined.  —  At  com- 
mon law  a  distress  could  not  have  been  made  after  the  ex- 
piration of  the  lease  (6).     But  by  8  Ann.  c.  14,  ss.  6,  7,  "any 
person  or  persons  having  any  rent  in  arrear  or  due 
[*454]  upon  any  lease  for  life  or  *  lives,  or  for  years,  or  at 
will,  ended  or  determined  (c),  may  distrain  for  such 

(t)  Jenner  ?;.  Clegg,   1   Moo.   &  R.  (^()  Browne  ?>.  Dunnery,  Hob.  208 ; 

213;  Lee  i\  Smith,  9  Excli.  GG2.  Kinrl  v.  Amniory,  Ilutton,  23. 

(//)  Buckley  i:  Taylor,  2  T;  R.  GOO ;  (hj  Co.  Lit.  47  b  ;  Pennant's  case, 

M'Leish  r.  Tate,  Cowp.  781 ;  Tracey  3  Co.  R.  ()4  ;  Williams  v.  Stiven,  9  Q. 

V.   Talbot,   0    Mod.    214 ;    Jenner    v.  B.  14 ;  Bullen,  120. 
Clc'gg,  1  Moo.  &  R.  213;  Lee  v.  Smitli,  (r)  Semble,  pei-  Willes,  J.,  in  Grim- 

9  Exch.  0G2.  wood  v.   Moss,  42   L.  J.,  C.  V.  at  p. 

(z)  Giles  V.  Spencer,  3  C  B.,  N.  S.  240,  that  this  docs  not  include  deter- 

244  ;  26  L.  J.,  C.  P.  237.  mination  hy  forfeiture. 

In  Pennsijlvania  it  is  held  that  landlord  has  claim  upon  goods  levied  upon 
prior  to  accruing  of  the  rent,  for  rent  up  to  the  time  of  seizure,  which  may 
be  apportioned,  though  in  the  middle  of  the  rent  period,  Anderson's  Appeal, 
3  Pa.  St.  218;  West  v.  Sink,  2  Yeates  (Pa.)  274;  Binns  v.  Hudson,  6  Binn. 
(Pa.)  505;  though  it  is  there  considered  (per  Gibson,  C.  J.,  in  Anderson's 
Appeal,  supra)  that  the  court  of  Pennsylvania  have  stretched  the  statute  in 
the  interest  of  equity. 

(/;)  Under  stnlntes.  —  In  Illtnols  (Sts.  ch.  80,  sec.  35)  if  tenant  remove  or  is 
about  to  remove  his  crops  from  the  demised  premises  before  tlie  rent  accrues, 
the  landlord  may  distrain,  or  if  the  tenant  himself  remove  (sec.  33). 

Jn  Mississii>pi  landlord  may  have  an  attachment  ujion  affidavit,  that  tenant 
is  about  to  remove  his  elfects  from  demised  premises  (Rev.  Code,  ss.  1304- 
1347). 

//*  (leorgla  likewise  (Code,  sec.  2285). 

710 


Cm.  XL  S.  10.]  PROCEEDINGS    IN    DISTRESS.  *454 

arrears  after  the  determination  of  the  said  respective  leases, 
in  the  same  manner  as  they  might  have  done  if  such  lease  or 
leases  had  not  been  ended  or  deteimined : "  "provided  that 
such  distress  be  made  within  the  space  of  six  calendar' 
months  after  the  determination  of  such  lease,  and  during 
the  continuance  of  such  landlord's  title  or  interest,  and  dur- 
ing the  possession  of  the  tenant  from  whom  such  arrears 
became  due."  ^ 

Before  this  act,  if  rent  had  been  reserved  payable,  say  at 
Lady-day  and  Michaelmas,  the  lord  would  have  lost  his 
remedy  by  distress  for  his  last  half-year's  rent ;  for  he  could 
not  have  distrained  for  it  until  it  was  in  arrear,  and  before 
then  the  term  would  have  ended  (t^). 

Distress  on  part  after  lease  determined.  —  Where  the  tenant 
is  allowed  to  hold  over  part  of  the  demised  property,  the 
landlord  may  distrain  on  that  part  (g).  And  where  the  term 
is  prolonged  as  to  part  by  the  custom  of  the  country  the 
landlord  may  distrain  although  the  six  months  have  ex- 
pired (/).  Nor  does  six  months'  limit  apply  to  a  case  where 
the  landlord  was  a  tenant  for  the  life,  and  the  term  is  pro- 
longed till  the  end  of  the  current  year,  under  tlje  statute 
14  &  15  Vict.  c.  25,  s.  1,  in  lieu  of  emblements  (^). 

(d)  Co.  Lit.  47  b;  Bullen,  120;  5;  Knight  v.  Bennett,  3  Bing.  364 ; 
Smith  L.  &  T.  222  (2nd  ed.).  Griffiths   v.   Puleston,    13   M.    &  W. 

(e)  Nuttall  V.  Staunton,  4  B.  &  C.       358. 

51.  (.9)  Haines  v.  Welch,  L.  R.,  4  C.  P. 

(/)  Beavan  v.  Delahay,  1  H.  Blac.       91 ;'  38  L.  J.,  C.  P.  118.      • 

1  Distress  after  expiration  of  tenancy.  —  The  statutory  right  of  dis- 
training within  six  montlis  exists  generally  in  America.  Distress  in  most  of 
the  states  cannot  be  made  after  more  than  six  months.  Werner  v.  Ropiequet, 
44  111.  522.  In  case  of  a  lease  from  year  to  year,  the  first  year's  rent  may  be 
distrained  for  more  than  six  months  after  the  end  of  the  year.  McClenaghan 
V.  Barker,  1  Q.  B.  (Ont.)  26. 

In  Pennsijlcania  the  time  is  unlimited.  (Act  of  Mar.  21,  1772;  2  Purdon's 
Dig.  p.  lOli;  Moss's  Appeal,  35  Pa.  St.  162;  Lewis's  Appeal,  66  Id.  312.) 

After  expiration  of  landlord's  interest  distress  cannot  be  made. 
Hartley  v.  Jarvis,  7  Q.  B.  (Ont.)  545. 

After  tenant  has  abandoned  possession  distress  cannot  be  made, 
Bukup  V.  Valentine,  11)  Wend.  (N.  Y.)  554;  Williams  v.  Terboss,  2  Id.  148, 
except  in  the  cases  provided  by  statute.  If  tenant  surrenders  between  rent 
days,- the  right  of  distress  as  well  as  rent  for  that  quarter  is  extinguished, 
Greider's  Appeal,  5  Pa.  St.  422 ;  though  landlord  is  entitled  to  the  emble- 
ments, Bain  v.  Clark,  10  Johns.  (N.  Y.)  424. 

711 


*455  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  10. 

In  case  of  death  of  tenant,  &c.  —  Where  the  original  tenant 
dies  and  his  representative  enters,  the  hxndlord  may  distrain 
upon  the  latter  within  six  months  after  the  end  of  the 
term  (A).  But  where  a  tenant  at  will  dies  and  his  widow 
remains  in  possession,  no  distress  can  be  made,  because  not 
only  the  tenancy  but  also  the  possession  of  the  tenant  from 
whom  the  arrears  became  due  has  ceased  (^).  Where  the 
tenant  of  a  farm  remained  a  few  days  after  the  expiration  of 
his  term,  and,  after  entr}^  by  a  new  tenant,  went  away,  leav- 
ing a  cow  and  some  pigs,  but  giving  no  further  intimation  of 
a  purpose  to  return  or  to  continue  holding  any  part  of  the 
farm,  it  was  held,  that  the  landlord  could  not  justify  distrain- 
ing the  goods  so  left  for  arrears  of  rent,  under  this  statute, 
inasmuch  as  the  possession  of  the  tenant  had  ceased  (A;). 

(b)  What  arrears  recoverable. 

Ouly  six  years'  arrears  of  rent  are  recoverable  by  distress 
in  ordinary  cases,  and  if  the  Agricultural  Holdings  Act 
applies  (I},  only  one  year's  arrears  are  so  recoverable.^ 

By  3  &  4  Will.  4,  c.  27,  s.  42,  "  no  arrears  of  rent 
[*455]  01  interest  in  *  respect  of  money  charged  on  rent,  or 
damages  in  respect  of  arrears,  shall  be  recovered  by 
distress,  action  or  suit,  but  within  six  years  next  after  the 
same  shall  have  become  due,  or  next  after  an  acknowledg- 
ment of  the  same  in  writing  shall  have  been  given  to  the 
person  entitled  thereto  or  his  agent,  signed  by  the  person  by 
whom  the  same  was  payable  or  his  agent."      This   set  lit m 

(A)  Braithwaite   ?•.  Cooksoy,   1    II.  (i)  Taylcrson  v.  Peters,  7  A.  &  K. 

Blac.  405 ;  Smitli   L.  &  T.  220  (2nd       100. 
ed.).  (/)  Ante,  Sect.  5,  and  post. 

(/)  Turner   v.   Barnes,  2  B.   &   S. 
435;  31  L.  J.,  Q.  B.  170. 

'  Limit  of  time  to  distrain  in  America.  — In  most  of  the  states  there  is 
no  express  statutory  limit  as  to  the  time  within  whicii  a  distress  must  be  made. 

In  Ontario  it  must  be  within  ten  years  of  the  time  the  rigiit  to  di.strain 
accrues  (Rev.  Sts.  ch.  Ill,  sec.  4)  ;  in  F/Vf//«i«,  witiiin  five  years  (Code,  sec. 
2790)  ;  in  West  Virr/inin,  one  year  (Code,  cii.  93,  sec.  10)  ;  in  Dehucnre,  two 
years  (Laws  of  Del.  ch.  120,  sec.  44). 

In  Kentnckij  the  landlord  (to  secure  his  superior  lien  for  one  year's  rent) 
must  distrain  upon  ordinary  pei'.soiiaity  within  ninety  days,  or  upon  crops 
within  one  hundred  and  twenty  days  (Gen.  Sts.  ch.  UO,  sees.  12,  13). 

712 


Cxi.  XI.  S.  10.]  PROCEEDINGS   IN   DISTRESS.  *455 

applies  to  rents  reserved  on  ordinary  leases  (w).  But  it  is 
well  observed  by  Mr.  Smith  (n)  that  the  power  to  distrain 
for  this  limited  amount  is  not  lost  hy  reason  of  the  mere 
non-payment  of  rent  for  any  time  short  of  the  period  after  the 
lapse  of  which  the  right  to  recover  the  land  is  gone ;  and  we 
shall  see  presently  tliat,  although  only  six  years  of  rent 
can  be  recovered  by  distress,  twenty  years'  arrears  may  be 
recovered  in  an  action  of  covenant  (o). 

Right  must  have  accrued  within  12  years. —  By  the  Real  Prop- 
erty Limitation  Act,  1874  (37  &  38  Vict.  c.  57),  s.  1,  "no  per- 
son shall  make  an  entry  or  distress,  or  bring  an  action  or  suit 
to  recover  any  land  or  rent,  but  within  twelve  years  next  after 
the  time  at  which  the  right  to  make  such  entry  or  distress,  or 
to  bring  such  action  or  suit,  shall  have  first  accrued  to  some 
person  through  whom  he  claims  ;  or  if  such,  right  shall  not 
have  accrued  to  any  person  through  whom  he  claims,  then 
within  twelve  years  next  after  the  time  at  which  the  right  to 
make  such  entrj-  or  distress,  or  to  bring  such  action  or  suit, 
shall  have  first  accrued  to  the  person  making  or  bringing  the 
same."  The  subsequent  sections  show  when  the  right  is  to 
be  deemed  to  have  first  accrued.  It  has  been  established, 
however,  by  authority,  that  the  repealed  second  section  of 
3  &  4  Will.  4,  c.  27,  with  which  the  above  section  is  sub- 
stantially identical,  excepting  that  the  period  of  twelve  is 
substituted  for  the  period  of  twenty  years,  does  not  apply 
to  rent  reserved  on  a  demise  (which  is  a  mere  incident  to  the 
reversion),  but  to  rents  wherein  a  distinct  estate  may  be  had 
independently  of  any  title  to  the  land  out  of  which  the  rent 
issues  (^),  ex.  gr.  an  ancient  quit  rent  (9-),  a  fee  farm  rent 
reserved  in  letters  patent  (r).  The  right  to  distrain,  there- 
fore —  for  six  years'  arrears  —  subsists  as  long  as  the  relation 


(wi)  Humfrey  v.  Gery,  7  C.  B.  B.  (p)  Grant  v.  Ellis,  9  M.  &  W.  113; 

567;   Manning  V.  Phelps,    10   Exch.  Archbold  r.  Scully,  9  H.  L.  360.    See 

69.  criticism  of  the  decisions  in  the  Jurist 

(«)  Smith  L.  &  T.  (2nd  ed.  p.  190),  Newspaper,  9  Jur.,  N.  S.,  Pt.  II.,  p. 

citing  Doe  v.  O.xenham,  7   M.  &  W.  315. 

131.  ((/)  Owen  v.  De  Beauvoir,  16  M.  & 

(o)  Post,  Chap.  XIII.,  Sect.  1,  "Ac-  W.  547  ;  5  Exch.  166. 

tinn  on  Covenant  for  rent ; "  Paget  v.  (r)  Humfrey  v.  Gery,  7  C.  B.  567. 
Foley,  2  Bing.  N.  C.  679. 

713 


*456  DISTRESS    FOR   RENT.  [Ch.  XI.  S.  10. 

of  landlord  and  tenant  subsists,  and  for  the  whole  length, 
however  long,  of  a  term  created  by  deed,  notwithstanding  the 
non-payment  of  the  rent  for  any  number  of  years  (s). 

Distress  on  Agricultural  Holding.  —  If  the  Agricultural 
Holdings  Act  applies  (^),  only  one  year's  arrears  of  rent  are 
recoverable  by  distress.  For  it  is  enacted  by  s.  44  of 
[*456]  that  *  Act  that  "  it  shall  not  be  lawful  for  any  land- 
lord entitled  to  the  rent  of  any  holding  to  which  the 
Act  applies  to  distrain  for  rent  which  became  due  more 
than  one  year  before  the  making  of  such  distress."  But  in 
•  order  to  provide  for  the  continuance  without  loss  to  the 
landlord,  of  the  very  common  practice  of  deferring  the  col- 
lection of  rents  from  the  day  at  which  they  became  due  to 
a  day  later  by  a  quarter  or  half-year  than  such  day,  this 
important  proviso  is  added :  — 

Deferring  collection.  —  "  Where  it  appears  that  according 
to  the  ordinary  course  of  dealing  between  the  landlord  and 
tenant,  the  payment  of  the  rent  has  been  allowed  to  be  de- 
ferred until  the  expiration  of  a  quarter  of  a  year  or  half 
a  year  after  the  date  at  which  such  rent  legally  became  due, 
then /or  the  purpose  of  this  section  the  rent  shall  be  deemed 
to  have  become  due  at  the  expiration  of  such  quarter  or 
half-year  as  aforesaid,  and  not  at  the  date  at  which  it  legally 
became  due." 

The  words  "  for  the  purpose  of  this  section  "  are  impor- 
tant as  showing  that  the  proviso  does  not  turn  the  deferred 
date  into  a  legal  date  absolutely,  but  merely  for  the  purpose 
of  fixing  the  time  for  a  distress.  With  regard  to  the  exact 
periods  of  quarters  and  half-years,  it  seems  that  if  a  longer 
period  than  these  shall  have  been  allowed,  the  landlord  will 
be  able  to  count  from  the  end  of  tlie  quarter  or  half-year 
forming  part  of  such  longer  period,  but  that  if  a  shorter 
period  shall  have  been  allowed,  such  shorter  period  cannot 
be  taken  into  account  at  all. 


{s)  See  Grant  v.  Ellis,  9  M.  &  W.       &  W.  131.     As  to  ejectment,  see  post, 
113 ;  Doe  d.  Davcy  v.  Oxeiihani,  7  M.       Cliap.  XX.,  Sect.  1  (b). 

(0  Ante,  Sect.  6. 

714 


Cii.  XI.  S.  10.]  PROCEEDINGS   IN   DISTRESS,  *457 


(c)   W/irre  Distress  must  he  made.^ 

By  the  Statute  of  Marlebridge  (52  Heil.  3,  c.  15),  "  it  shall 
be  huvful  for  no  man  from  henceforth  for  any  manner  of 
cause  to  take  distresses  out  of  his  fee,  nor  in  the  king's 
highway,  nor  in  the  common  street,  but  only  to  the  king 
and  his  officers  having  special  authority  to  do  the  same." 

Distress  must  be  on  land.  —  As  a  general  rule,  the  distress 
must  be  made  on  the  land  from  whence  the  rent  issues,  and 
elsewhere  (t*),  except  in  the  case  of  the  king  (or  queen 
regnant),  who  may  distrain  on  any  of  his  tenants'  lands 
wherever  situate  (^x),  and  except  in  the  case  of  fraudulent 
removals  (y),  and  distresses  for  gale  rents  of  quarries  in  the 
Forest  of  Dean  (2).  A  further  important  exception,  that 
the  parties  may  by  agreement  arrange  for  a  right  of  distress 
upon  land  other  than  that  out  of  which  the  rent  issues,  was 
established  by  the  Exchequer  Chamber  in  Daniel  v.  Step- 
ney (a). 

*  Two  separate  demises,  &c.  —  Where  two  pieces  of  [*457] 
land  are  let  by  two  separate  demises,  although  both 
are  contained  in  one  deed,  a  joint  distress  cannot  be  made 
for  them ;  as  that  would  be  to  make  the  rent  of  one  issue  out 
of  the  other  (6).  Where  a  single  rent  issues  out  of  land  in 
the  occupation  of  several  tenants,  a  distress  may  be  made 
for  the  whole  amount  upon  the  land  of  any  one  of  them  (f). 

Distress  on  part.  —  The  distress  may  be  made  upon  ani/ 
part  of  the  land,  as  the  entire  rent  issues  out  of  the  whole 
and  every  part  (ri).  Where  the  tenant  of  a  farm  holds  over 
part  of  it  after  the  expiration  of  the  term,  pursuant  to  some 
clause  in  the  lease  or  the  custom  of  the  country,  a  distress 

(«)  Co.  Lit.  161  a ;  Gilb.  Distr.  40;  (a)  L.  R.,  9  Exch.  185. 

Bullen,  124;  Com.  Dig.  Distress  (A.  (6)  Rogersi>.Birkniire,2  Stra.  1040; 

3),  (B.  1)  ;  Capel  v.  Buzzard,  6  Bing.  Rep.  temp.  Hardw.  245. 
150;  3  B.  &  J.  334;  Smith  L.  &  T.  (c)  1  Roll.  Abr.  671;  Bullen,  12.-); 

211  (2nd  ed.).  Woodcock  v.  Titterton,  12  W.  R.  685, 

(x)  2  Inst.  132  ;  Com.  Dig.  Distress  Q.  B. 
(A.  3)  ;  Smith  L.  &  T.  211  (2nd  ed.).  (d)  Com.  Dig.  tit.  Distress  (A.  3) ; 

((/)  Post,  467.  Bullen,  125;  Woodcock  v.  Titterton, 

(z)  59  Geo.  4,  c.  86,  s.  7.  supra. 

1  See  (inte,  sec.  1,  notes 

715 


*458  DISTRESS   FOR   RENT.  [Cn.  XI.  S.  10. 

may  be  made  on  that  part  for  all  the  arrears  within  six 
months  after  the  expiration  of  the  tenancy  («).  Where  by 
indenture  A.  demised  to  B.  a  wharf,  next  the  River  Thames, 
described  by  abutments,  together  with  all  ways,  paths,  pas- 
sages, easements,  profits,  commodities  and  appurtenances 
whatsoever  to  the  said  wharf  belonging ;  and  l)y  the  indent- 
ure the  exclusive  use  of  tliQ-  land  of  the  river  Thames  oppo- 
site to  and  in  front  of  the  wharf  between  high  and  low 
water  mark,  as  well  when  covered  with  water  as  dry,  for  the 
accommodation  of  the  tenants  of  the  wharf,  was  demised  as 
appurtenant  to  the  wharf,  but  the  land  itself  between  high 
and  low  water  mark  was  not  demised:  it  was  held  that  the 
lessor  could  not  distrain  for  rent  in  arrear  barges  the  prop- 
erty of  B.  lying  in  the  space  between  high  and  Ioav  water 
mark,  and  attached  to  the  wharf  by  ropes  (/)•  But  where 
a  tenant  rented  a  stable,  and  was  in  the  habit  of  keeping  his 
cart  on  a  part  of  the  road  adjoining  the  stable,  which  had 
been  paved  for  that  purpose  by  his  landlord :  held,  that  a 
distress  for  rent  might  be  made  of  the  cart  whilst  on  the 
paved  part  of  the  road,  which  must  be  considered  as  part  of 
the  demised  premises  ((/). 

Lands  in  different  counties.  —  Where  lands  lying  in  differ- 
ent counties  are  held  under  one  demise  at  one  entire  rent,  a 
distress  may  be  lawfully  taken  in  either  county  for  the  whole 
rent  in  arrear,  and  chasing  a  distress  over  is  a  continuance 
of  the  taking ;  but  where  the  counties  do  not  adjoin,  a  dis- 
tress cannot  be  chased  out  of  one  county  into  the  other  (1i). 

Distress  on  highway.  —  By  the  Statute  of  Marlebridge  ("52 
Hen.  3,  c.  15)  no  person  can  make  a  distress  on  the  high- 
way, it  being  privileged  for  the  convenience  of  passengers 
and  the  encouragement  of  commerce  (i) ;  but  it 
[*458]  *  would  seem  that  where  a  farm  adjoins  a  liighway, 
goods  standing  in  the  highway,  within  the  middle  of 

(c)  Nuttall  V.  Staunton,  4  R.  &  C.  (7)  Cillinglium  v.  Gwyes,  1(5  L.  T. 

51;    Beavan  v.  Dclaliay,   1    II.  Blac.  640, /ic/- Lush,  J. 

5;  Lewis  v.  Harris,   Id.  7,  note  (a);  (/i)  Walter?;.  Iluniball,  1  Ld.  Kayni. 

Knijiiit  V.  Bennett,  .3  Bing.  m\;  Rul-  C5 ;   12  Moil.  77;  1  S.ilk.  'IM. 

len,  121,  125.  (/)  Co.  I-it.  100  b;  Uilb.  Distr.  51  ; 

(f)  Capelv.  Buszard,  0  Binjr.  150;  Builen,  125. 
:'.  Y.  &  J.  -AH  ;  8  B.  &  C.  141 ;  Builen, 
l-.M. 

7tG 


Cn.  XI.  S.  10.]  TROCEEDINGS    IN   DISTRESS.  *458 

it,  and  on  that  i)art  of  it  next  the  demised  premises,  may  be 
distrained  (Jc).  If  the  hindlord  or  his  agent  come  to  distrain 
cattle  which  he  sees  upon  the  land,  and  the  tenant  or  any 
other  person  drives  the  cattle  off  the  land,  the  landlord  or 
his  agent  may  then  follow  them  and  distrain  them,  even  on 
the  highway:  but  if  he  havt?  no»view  of  the  cattle  whilst 
on  the  land,  although  the  tenant  drive  them  off  purposely 
to  prevent  a  distress ;  or  if  the  cattle  themselves,  after  the 
view,  go  out  of  the  fee,  or  the  tenant  or  any  other  person, 
after  the  view,  remove  them  for  any  other  .purpose  than 
that  of  preventing  a  distress ;  in  these  cases  the  landlord  or 
his  agent  cannot  distrain  them  (V).  Cases  of  fraudulent 
removal  to  avoid  a  distress  are  considered  hereafter  (m). 

Distress  on  commons.  —  By  11  Geo.  2,  c.  19,  s.  8,  landlords 
are  enabled  to  take  as  a  distress  for  rent  any  cattle  or  stock 
belonging  to  their  tenants  depasturing  upon  any  common 
appendant  or  appurtenant  or  in  any  way  belonging  to  the 
premises  demised.  This  enactment  does  not  extend  to  a 
distress  for  a  rent-charge  (n). 

(d)  Of  the  Mode  of  a  Distress,  and  of  the  Distress  Warrant. 

By  whom,  and  who  may  be  bailiff.  —  A  distress  may  be 
made  either  by  the  landlord  himself,  or,  as  is  now  the  usual 
practice,  by  his  authorized  agent  or  bailiff  (o).^  The  Statute 
of  Westminster  2nd  (13  Edw.  1,  stat.  1,  c.  37),  which  enacts 
that  no  distress  shall  be  taken  except  by  bailiffs  "  sworn  and 

(k)  Hodges  v.  Lawrence,  18   Just.  (m)  Sect.  8  (d). 

Peace,  347,  Ex.  00  Bullen,  12G. 

(/)  Co.    Lit.    161    a;    2    List.    132;  (o)  Smith  L.  &  T.  222  (2ud  ed.)  ; 

Clement  v.  Milner,  3  Esp.  95;  Bullen,  Bullen,  129. 
125,  120;   Smith  L.   &  T.  212   r2nd 
ed.). 

1  Distress,  how^  made  in  America. — In  many  of  the  American  states 
a  landlord  cannot  issue  a  distress  warrant,  but  must  apply  to  a  magistrate  or 
court  therefor.  Maryland  (Rev.  Code,  Art.  67,  sec.  8)  ;  Virginia  (Code,  sec. 
2790)  ;  West  Virginia  (Code,  ch.  93,  sec.  10)  ;  Kentucky  (Gen.  Sts.  ch.  66, 
sec.  4)  ;  Georgia  (Code,  sec.  4082)  ;  Florida  (Dig.  ch.  137,  sec.  2)  ;  Missis- 
sippi (Rev.  Code,  sec.  1302);  Texas  (Rev.  Sts.  sees.  3112,  3114),  &c. ;  and 
generally  in  those  states  the  warrant  must  be  served  by  a  legally  qualified 
oflacer. 

In  several  of  the  provinces  and  states  the  landlord  may  still  issue  his  own 
warrant. 

717 


*459  DISTRESS   FOR    RENT.  [Ch.  XI.  S.  10. 

known,"  does  not  apply  to  distresses  taken  for  rent  in 
arrear  (/')•  ^^  would  seem  that  an  infant  cannot  be  a 
bailiff  (([).  A  person  employed  as  a  distraining  broker,  if 
engaged  in  the  service  of  the  landlord  only,  and  paid  a 
salar}^  by  him,  is  a  servant  within  the  meaning  of  24  & 
25  Vict.  c.  96,  s.  67,  and  ^nay  be  found  guilty  of  embezzle- 
ment (/•). 

Distress  on  agricultural  holding  by  certificated  bailiff.  —  If 
the  Agricultural  Holdings  Act  applies  (s),  the  distress  must 
be  levied  by  a  certificated  bailiff.  For  it  is  enacted  by  s.  52 
of  that  act  that  "  no  person  shall  act  as  a  bailiff  to  levy  any 
distress  "  on  a  holding  subject  to  the  act  "  unless  he  shall  be 
authorized  to  act  as  a  bailiff  by  a  certificate  in  writing  under 
the  hand  of  the  judge  of  a  county  court."  Upon  a  strict 
reading  of  s.  61  of  the  act,  this  would  mean  the  county 
court  of  the  district  in  which  the  holding  is  situate,  but  it  has  ■ 
been  held  that  the  certificate  of  any  county  court 
[*459]  judge  is  sufficient  (i).  A  *  certificated  bailiff  may, 
by 'the  same  section,  be  moved  by  the  judge  for 
extortion. 

Effect  of  levy  by  uncertificated  bailiff.  —  An  uncertificated 
bailiff  would,  by  levying,  perhaps  render  himself  liable  to  in- 
dictment, and  would  certainly  render  a  landlord  knowingly 
employing  him  liable  to  an  action  for  irregular  distress.  It 
appears  that  if  a  landlord  choose  to  levy  himself,  there  is 
nothing  in  the  section  to  prevent  an  uncertificated  bailiff 
working  out  the  distress  by  sale.  An  isolated  transaction, 
as  well  as  engaging  in  the  business  generally,  seems  to  be 
within  the  section  (m). 

Landlord  liable  for  irregular  acts.  —  Care  should  be  taken  to 
select  a  proper  bailiff,  for  the  landlord  is  personally  respon- 
sible for  all  irregular  acts  committed  by  his  bailiff  in  the  mak- 
ing of  a  distress:  ex.  gr.  for  distraining  goods  to  an  excessive 

(p)  Begbie  v.  Hayne,  2  Bing.  N.  C.  (s)  Sect.  5,  ante. 

124;  Cliild  y.  Chaiiil)crlain,  0  C.  &  P.  (<)  Sanders,   Tn   re,   Ex  parte   Sor- 

213.  gcant,  54  L.  J.,  Bank.  ;W1. 

(7)  Cuckson  V.   Winter,  2  Man.   &  («)  See       Lely      &      IVarce-Edge- 

H.  ;j13.  ennibe's  Agricultural  Holdings  Act, 

(r)  Reg.  V.  Flanagan,  10  Cox  C.  C.  p.  130. 

w;  1 . 

718 


Ch.  XI.  S.  10.]  PROCEEDINGS    IN    DISTRESS.  *459 

amount ;  for  selliiit^  without  five  days'  notice ;  for  selling 
without  a  proper  appraisement ;  for  not  selling  for  the  best 
price ;  for  making  extortionate  charges ;  for  not  leaving 
the  overplus  in  the  hands  of  the  sheriff,  under-sheriff  or 
constable;    and  the  like  (a;). 

Landlord  npt  liable  for  unauthorized  illegal  acts.  —  But  the 
landlord  is  not  liable  for  illegal  acts  committed  by  his  bailiff, 
which  are  not  authorized  by  the  warrant  of  distress  or  other- 
wise (?/),  especially  where  he  disclaims  and  repudiates  such 
acts  immediately  they  come  to  his  knowledge  (z).  A 
slight  recognition  by  the  landlord  of  what  has  been  illegally 
done  on  his  behalf  may  amount  to  an  adoption  and  ratifica- 
tion of  such  illegal  acts,  and  so  render  him  personally  liable 
for  them  (a).^ 


(a:)  Haseler  v.  Lemoyne,  5  C.  B.,  {z)  Hurry  v.  Rickman,  1  Moo.  &  R. 

N.  S.  530  ;  28  L.  J'.,  C  P.  103;  Ward  126. 

V.  Shew,  9  Bing.  608;  Dawe  v.  Cloud,  (a)  Haseler  r>.  Lemoyne,  5  C.  B.,  N. 

14  L.  T.  155.  S.  630 ;  28  L.  J.,  C.  P.  103. 

(?/)  Freeman  v.  Rosher,  13  Q.  B. 
780". 

1  Liability  for  illegal  distress.  —  Aside  from  special  statutory  remedies, 
landlord  is  liable  in  trespass  if  distress  is  wholly  illegal,  as,  if  no  rent  is  due, 
Benson  v.  Anderson,  4  H.  &  J.  (Md.)  315 ;  Fretton  v.  Karclier,  77  Pa.  St.  423; 
or  if  landlord  abandon  distress  witliout  consent  of  lessee  and  distrain  again, 
Everett  v.  Neff,  28  Md.  176. 

Trespass  ab  initio.  —  He  becomes  a  trespasser  ab  initio  if  he  sells  the 
goods  without  tirst  ajipraising  and  advertising  them,  Kerr  v.  Sharp,  14  S.  &  R. 
(Pa.)  399;  Quinn  v.  Wallace,  6  Whart.  (Pa.)  400;  or  if  he  appraise  them 
prematurely,  Brisben  v.  Wilson,  60  Pa.  St.  452. 

Mere  failure  to  give  notice  of  distress  without  sale  does  not  make  Iiim  a 
trespasser.  M'Kinney  v.  Reader,  6  Watts  (Pa.)  34;  Keller  v.  Weber,  27  Md. 
660 ;  Johnson  v.  Black,  9  W.  N.  C.  (Pa.)  438. 

Distraining  or  completion  of  sale  after  tender  of  balance  of  rent  renders 
the  landlord  liable  as  a  trespasser  ah  initio.  Rees  ;;.  Emerick,  6  S.  &  R.  (Pa.) 
286  ;  Richards  v.  McGrath,  100  Pa.  St.  389. 

Liability  of  officer. — The  landlord's  bailiff  is  also  liable  for  distraining 
illegally  (as,  for  example,  when  no  rent  was  due).  Wells  v.  Hornish,  3 
Penn.  30. 

Of  course,  if  officer  have  warrant  issued  by  magistrate  and  ivant  of  author- 
it  ii  did  not  appear,  he  would  be  protected  (except  for  his  own  wroiigfiil  acts). 

Trespass  will  lie  against  landlord  and  officer  for  breaking  and  entering. 
Cate  V.  Scliaum,  51  Md.  299. 

Trover  lies  against  landlord  for  distraining  exempted  goods,  Briggs  v. 
Largo,  30  I*a.  St.  287;  or  for  distraining  off  premises,  Fraser  v.  McFatridge, 
1  Russ.  &  Geld.  (N.  S.)  28,  &c. 

719 


*460  DISTRESS    FOE   RENT.  [Cii.  XI.  S.  10. 

Distress  warrant.  —  Where  the  bailiff  distrains  he  should 
properly  have  a  warrant  or  authority  in  writing  from  his 
employer,  which  is  commonly  called  a  "  warrant  of  distress  " 
or  a  "  distress  warrant"  (5).  The  warrant  did  not  require  a 
stamp  under  the  old  Stamp  Acts  (<?),  nor  does  it  under  the 
Stamp  Act,  1870.  One  of  several  joint-tenants  may  sign  a 
warrant  of  distress,  and  appoint  a  bailiff  to  distrain  for  rent 
due  to  all,  if  the  others  do  not  forbid  him:  and  if,  when 
applied  to,  they  merely  decline  to  act,  that  will  not  prevent 
him  from  proceeding  (cZ).  Tenants  in  common  may  distrain, 
each  for  his  own  share,  but  have  no  implied  authority  to  dis- 
train for  each  other :  they  may,  however,  join  in  a  warrant 
to  distrain  for  rent  due  to  all  of  them  (g)  :  coparceners  are 
more  like  joint-tenants ;  either  they  should  all  sign  (/),  or 
any  one  may  sign  on  behalf  of  herself  and  the  others  (^). 
So  one  of  several  co-heirs  in  gavelkind  may  sign  the  distress 

warrant  on  behalf  of  himself  and  his  co-heirs  without 
[*460]  express  authority  from   them  (^).     *  A  mortgagor, 

who  is  permitted  to  remain  in  possession  and  to 
receive  the  rents  and  profits,  has  implied  authority  to  dis- 
train for  the  arrears  as  to  the  bailiff  or  agent  of  the  mort- 
gagee ;  and  he  may  so  justify  the  distress  notwithstanding 
he  took  it  in  his  own  name  as  for  rent  due  to  himself  (A). 

Ratification  of  authority  to  distrain.  —  A  man  may  distrain 
without  any  express  previous  authority ;  and  if  he  afterwards 
obtain  the  assent  of  the  person  in  whose  right  the  distress 
was  made,  such  assent  will  be  equivalent  to  a  previous  com- 
mand, and  will  have    relation   to  the  time  of   the  distress 

(b)  See  forms,  Appendix   D,  No.  1.  (/)  Sterlman  v.  Pa<jo,  1  Salic.  390; 

(c)  Tyle  V.  Partridge,  15  M.  &  W.  Home  v.  Lewin,  1  Ld.  Rayni.  030. 
20.  (ft)  Leitrh  v.  Shepherd,  2  Brod.  & 

(d)  Robinson  ;-.  Hoffman,  4  Bing.  B.  4(50 ;  BuUen,  44,  130;  antr,  422. 
502 ;  3  C.  &  P.  234  ;  fiH^p,  422.  (A)  Trent    v.    Hunt,    9    Excli.    14; 

(e)  Ante,  422;   Bulien,  48.  Snell  v.  Finch,  13  C.  B.,  N.  S.  051 ; 

32  L.  J.,  C.  P.  117. 

Replevin  iic.'^  in  all  cases  where  distress  is  illegal.  Dent  v.  Hancock,  5 
Gill  (M<\.)  120;   Russell  v.  Buckley,  25  N.  B.  204. 

Excessive  distress.  ^Distraining  for  more  than  is  due  does  not  consti- 
turc  trespass,  M'Kiiiiu>y  r.  Header,  0  Watts  (Pa.)  34,  though  it  is  actionalile. 

Double  damages. — The  special  statutory  remedy  of  action  for  doulde 
d:im:ii:(s  cxi.Hts  in  many  of  the  states.  The  officer  also  is  liable.  McElroy  v. 
Dice,  17  Pa.  St.  103. 

720 


Cii.  XI.  S.  lO.J  TROCEEDINOS   IN   DISTRESS.  *460 

taken  (i).i  Where,  in  replevin  against  a  broker,  it  is  proved 
that  the  landlord  employs  the  solicitor  to  defend  the  broker, 
that  is  sufficient  evidence  of  the  broker's  authority  to  distrain 
in  the  absence  of  any  written  warrant  (^).  So  where  a  dis- 
tress was  made  in  the  name  of  a  person  who  was  dead,  a  rec- 
ognition of  it  by  the  executor  was  held  good  (?).  Where  a 
warrant  of  distress  was  addressed  to  Messrs.  U\,  or  their 
agtint,  and  their  clerk  erased  the  name  of  T.  and  substituted 
that  of  W.,  by  whom  the  distress  was  made,  and  the  land- 
lord's agent  who  had  signed  the  warrant  knew  of  the  distress 
being  so  made,  and  communicated  with  W.  respecting  it :  it 
was  held,  that  the  employment  of  W.  was  sufficiently  auth- 
orized by  the  agent  to  make  the  latter  liable  on  an  indem- 
nity given  by  him  to  T.  (m). 

Indemnity  to  broker.  —  Generally  speaking,  a  warrant  of 
distress  creates  an  express  or  implied  indemnity  to  the  bailiff 
and  his  assistants  against  actions  (in  any  form)  which  are 
maintainable  on  the  ground  that  the  landlord  had  no  legal 
right  to  distrain.  But  the  indemnity  does  not  extend  to  ille- 
gal acts,  nor  to  those  irregular  acts  for  which  the  landlord  is 
responsible  to  the  tenant  (w).  On  the  contrary,  the  landlord 
has  a  remedy  over  against  the  bailiff  for  any  loss  or  damage 
he  may  have  sustained  by  reason  of  such  negligence  or  mis- 
conduct (o).  Where  a  landlord  gave  authority  to  a  broker 
to  distrain  the  goods  of  his  tenant,  and  an  indemnity  against 
all  costs  and  charges  that  he  mig^ht  be  at  "  on  that  account," 
and  upon  making  the  distress,  the  broker's  men,  being  told 
by  the  son  of  the  tenant  that  a  cask  contained  spent  liquor 
of  no  value,  took  the  cask  to  pieces  and  let  the  liquor  run 
off,  when  in  fact  it  was  cochineal  dye  belonging  to  a  third 
person,  who  for  wasting  it  recovered  damages  in  trover 
against  the  broker:    it  was  held,  that  he  could  not  recover 

(0  Gilb.  "Distr.  32 ;   Ero.  Abr.  tit.  (/)  Whitehead  v.  Taylor,  10  A.  & 

Traverse,  3 ;  Lamb  r.  Mills,  4  Mod.       E.  210. 
378;  TreviUian  ;•.  Tine,  11  Mod.  112.  (m)  Toplis  v.  Grane,  5  Bing.  N.  C. 

(k)  Duncan  v.  Meikleham,  3  P.  &      636 ;  7  Scott,  620. 
C.  172.  (n)  Ante,  459. 

(o)  2  Chit.  PI.  503  (7th  ed.). 

1  Jean  v.  Spurrier,  35  Md.  110. 

721 


*461  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  10. 

the  amount  of  those  damages  from  the  landlord  in  an  action 
on  the  indemnity ;  and  that  such  an  indemnity  could  apply 
only  to  such  cases  where  the  distress  was  illegal,  because  the 
landlord  had  no  right  to  distrain  (jo).  Where  the 
[*461]  landlord's  agent  employed  a  broker  to  levy  *  a  dis- 
tress on  the  premises  of  an  auctioneer,  and  urged  him 
to  make  the  levy  forthwith  as  there  was  a  large  quantity  of 
furniture  in  the  auction  room,  and  by  the  warrant  he  directed 
him  to  distrain  the  several  goods  and  chattels  on  the  prem- 
ises, whereupon  the  broker  seized  all  the  goods,  but  some  of 
them  turned  out  to  be  privileged  from  distress :  it  was  held^ 
that  an  indemnification  of  the  broker  was  implied  to  be  given 
by  the  agent  (jq).  But  it  seems  that  in  ordinary  cases  a 
broker,  who  takes  goods  which  are  privileged  from  distress, 
cannot  look  for  an  indemnity  from  his  employer  (jcf).  Where 
the  warrant  of  distress  contained  the  following  clause :  — 
"  And  for  your  so  doing  this  shall  be  your  sufficient  warrant 
and  authority  and  indemnification  against  all  costs  and 
charges  in  respect  of  any  law  expenses,  action  or  actions, 
that  may  arise,  as  well  as  any  other  and  all  other  charges  or 
expenses  which  you  or  your  agent  may  be  at  or  be  brought 
against  you  or  your  agent  on  this  account : "  it  was  held, 
that  the  indemnity  extended  to  the  costs  of  defending  an 
action  of  trover  wrongfully  brought  by  the  tenant  (who  ad- 
mitted the  tenancy  and  the  rent  being  due)  against  the  land- 
lord's agent  for  goods  taken  under  the  distress,  in  which 
action  the  tenant  was  nonsuited  (r). 

Outer  door  may  not  be  broken  open.  —  The  outer  door  of 
the  tenant's  house  cannot  lawfully  be  broken  open  in  order 
to  make  a  distress  (s)  ;  ^  but  if  tlie  outer  door  be  open,  the 
person  distraining  may  justify  breaking  open  an  inner  door 

{[>)  Draper  v.  Thompson,  4  C.  &  P.  (r)  Ibbett  v.  De  La  Salle,  0  H.  & 

84.  N.  2.3:];  .SO  L.  J.,  Ex.44. 

(9)  Toplis  J'.  Grane,  5  Bing.  N.  C.  (.s)  Somayne's  case,  5  To.  R.  01  ;  1 

636.  Smith  L.  C.  114;  Smith  L.  &  T.  2.2Z 

(2nd  cd.). 

'  Entry,  how  made.  —  (a)  At  rommon  law,  if  liiiidlord  or  bailiff  broak  and 
enter  outer  door,  he  is  guilty  of  trespass.  Mayfield  i-.  White,  1  Bro.  (Pa.) 
241  ;  Russell  v.  Buckley,  25  N.  B.  2fi4,  overruling  Myers  c  Smith,  4  Allen 
(N.  B.)  207. 

722 


Ch.  XI.  S.  10.]  PROCEEDINGS   IN   DISTRESS.  *462 

or  lock  to  find  any  goods  which  are  distrainable  (<).  A 
landlord  is  not  justified  in  breaking  open  the  outer  door  of  a 
stable,  though  not  within  the  curtilage  (m),  nor  in  forcibly 
opening  a  padlock  on  a  barn  door  (2;),  nor  in  breaking  open 
gates  or  breaking  down  enclosures  (^).  But  in  order  to  dis- 
train he  may  climb  over  a  fence  and  so  gain  access  to  the 
house  by  an  open  door  (2) ;  he  may  also  open  the  outer  door 
by  the  usual  means  adopted  by  persons  having  access  to  the 
building,  as  by  turning  the  key,  lifting  the  latch,  or  drawing 
back  the  bolt  (a)  :  but  he  may  not  put  his  hand  through  a 
hole  in  the  door,  or  through  a  broken  pane  of  glass,  and 
remove  a  bar,  window-latch,  or  other  fastening,  those  not 
being  the  usual  or  accustomed  modes  of  obtaining  admission 
to  the  premises  (^). 

Distress  through  open  window. — An  entry  to  make  a  dis- 
tress    through     an     open     window     is     lawful  (c). 
*  But  if   the    distrainer   break    open  a  window,  or  [*462] 
even  unfasten  a  hasp,  or  open  an  unfastened  win- 
dow ((^),  it  is  illegal,  and  the  distress  void  ah  initio  (e)     It  is 

(<)  Browning  v.  Dann,  Bull.  N.  P.  the  Common  Pleas,  but  Eldridge  v. 

81  ;  Co.  Lit.  161  (a)  ;  Smith  L.  &  T.  Stacey  was  not  cited  in  that  case. 

223  (2nd  ed.).  (a)  Ryan  v.  Shilcock,  7  Exch.  72; 

(u)  Brown  v.  Glenn,  16  Q.  B.  254.  21  L.  J.,  Ex.  55. 

(x)  9  Vin.  Abr.   128,  Distress  (E.  (6)  Fitz.  Abr.  tit.  Distress,  pi.  21  ; 

2),  pi.  6.  cited  7  Exch.  76  ;  Hancock  v.  Austin, 

(y)  Co.  Lit.  161  a;  cited  16  Q.  B.  14  C.  B.,  N.  S.  634;  32  L.  J.,  C.  P. 

255,  257,  and  in  7  Exch.  73.  252. 

(2)  Eldridge  v.  Stacey,  15  C.  B.,  N.  (c)  Nixon   v.  Freeman,  5  H.  &  N. 

S.458;  12  W.  R.  51  ;  see  contra,  Scott  647,  652  ;  29  L.  J.,  Ex.  271. 

V.  Buckley,  16  L.  T.  573,  Byles,  J.,  (d)  Nash  v.  Lucas,  L.  R.,  2  Q.  B. 

after  consulting  the  other  judges  of  590;  8  B.  &  S.  531. 

(e)  Attack  v.  Bramwell,  3  B.  &  S. 

Entry  through  gate  fastened  by  hook  and  staple  on  inside  is  a  trespass. 
Gate  V.  Schaum,  51  Md.  299. 

Landlord  may  open  door  of  house  or  barn  in  ordinary  way,  by  lifting  latch, 
or,  if  some  one  else  has  forcibly  broken  it  open,  he  may  enter  thereafter.  Dent 
V.  Hancock,  5  Gill  (Md.)  120. 

(b)  Under  statutes.  —  Several  states  have  special  statutes,  authorizing  offi- 
cers serving  distress  warrants  to  forcibly  break  open  doors,  as  Virginia  (Code, 
sec.  2793)  and  West  Virginia  (Code,  ch.  93,  sec.  13).  In  New  Jersey,  if  goods 
are  carried  away  to  avoid  rent,  landlord  may,  with  aid  of  a  constable,  break 
and  enter  a  house,  barn,  stable,  &c.,  first  making  oath  that  there  is  reasonable 
ground  to  suspect  such  goods  are  therein.  Revision  of  N.  J.  pp.  311,  312, 
sec.  16. 

723 


*462  DISTRESS   FOR   RENT,  [Ch.  XI.  S.  10. 

legal,  however,  further  to  open  an  already  partly-oi3en  win- 
dow, for  the  purpose  of  effecting  an  entry  to  distrain  (/), 
even  if  the  window  be  open  but  two  or  three  inches  (,^).^ 

Re-entry  to  distrain.  —  Generally  speaking,  a  second  distress 
for  the  same  rent  cannot  lawfully  be  made  -where  the  first 
has  been  abandoned  (Ji). 

"  Abandonment."  —  But  "  abandonment "  does  not  always 
take  place  by  a  mere  leaving  of  the  premises,  otherwise  the 
distrainer  would  lose  his  remedy  by  a  forcible  ejectment. 
Thus  where  the  defendant,  having  with  him  a  constable,  had 
entered  the  plaintiff's  house  to  make  a  distress  for  rent ;  and 
after  he  had  stated  his  business  and  began  to  take  an  inven- 
tory, the  plaintiff's  wife  tore  his  paper,  beat  him  and  the  con- 
stable out,  and  then  blocked  up  the  door ;  upon  wdiich,  about 
an  hour  afterwards,  the  defendant,  with  several  others,  re- 
turned and  demanded  admittance,  which,  being  refused,  he 
broke  open  the  doors :  it  was  held  by  Wilmot,  J.,  that  the 
distress  having  been  lawfully  begun  and  not  deserted,  but 
the  defendant  having  been  compelled  to  quit  by  violence, 
there  was  a  recontinuance  of  the  first  taking,  and  so  the 
second  entrance  was  lawful,  though  the  defendant  could  not, 
wlien  he  first  came,  have  so  broken  open  the  door  (i).  When 
a  person  has  once  peaceably  entered  to  distrain,  and  has  been 
forcibly  put  out,  he  may  legally  break  open  a  door  or  window 
to  re-enter  and  complete  the  distress :  but  if  he  has  merely 
got  his  foot  or  arm  between  the  door  and  lintel,  or  by  putting 
a  pair  of  shears,  or  a  stick,  between  the  door  and  lintel,  and 
so  preventing  the  door  being  closed,  that  is  not  a  sufficient 
entry  to  entitle  him  afterwards  to  break  open  a  door  or  win- 
dow to  distrain  (^).  Where  a  man  put  in  possession  under 
a  distress  left  tlie  house  for  a  purpose  not  necessay,  but  rea- 
sonably convenient,  for  a  sliort  time,  and  being  forcibly  kept 

520;  32  L.. I.,  Q.  B.  140;   Hancock  i-.  (h)  Aa   to   "second    distress,"   see 

Austin,  supra.  post,  Sect.  11. 

(/•)  Crabtree   v.    Hobinson,  L.  R.,  (/)  Ksp.  N.  T.  382. 

15  Q.  IV   I).  313;  33  W.  R.  936,  per  (k)  Boyd  v.  Trofaze,  10  L.  T.  431, 

Manisty  and  Field,  JJ.  per  Mellor,  J. 

1  Opening  a  TArindow^,  shut,  but  not  fastened,  was  iieid  unhnvful  in  Gate 
V.  Sdiauni,  51  Md.  2i)!). 

724 


Cii.  XL  S.  10.]  PROCEEDINGS   IN   DISTRESS.  *463 

out,  broke  the  outer  door :  it  was  held,  that  there  was  not  an 
abandonment  of  the  distress,  and  that  he  was  justified  in 
breaking  the  outer  door  for  the  purpose  of  re-entering  (^). 
But  where  a  broker's  man,  having  taken  possession  of  prop- 
erty under  a  distress,  and  remained  two  days,  left  the  house 
in  a  state  of  excitement  bordering  on  insanity ;  and  the  land- 
lord, thinking  that  his  leaving  had  been  procured  by  the 
drugging  of  his  liquor  by  the  parties  in  the  house 
(which  was  not  proved),  six  *  days  afterwards  broke  [*463] 
into  the  house  and  took  away  the  goods  without  any 
previous  demand  of  admission ;  it  was  held,  that  he  had  no 
right  to  enter  again  after  so  long  a  delay,  and  that  the  owner 
of  the  goods  might  maintain  trover  for  them  (m). 

Abandonment  is  a  question  for  the  jury.  —  It  is  always  a 
question  for  the  jury  whether  there  has  or  not  been  an  aban- 
donment (w).  Thei-e  is  no  abandonment  of  a  distress  where 
the  distrainer,  having  seized  the  goods  of  a  stranger  on  the 
premises  without  having  given  him  notice  of  the  distress, 
permits  him  to  take  them  away  for  a  temporary  purpose,  the 
distrainer  intending  that  they  shall  be  returned,  which  is 
done  (o).  Where  a  bailiff  or  broker,  after  having  been 
ejected  from  a  distress,  re-enters  to  distrain,  he  should  con- 
fine himself  to  the  same  goods  (jo).  After  a  lawful  entry  to 
distrain  the  broker  may,  if  necessary,  break  open  the  outer 
door  to  get  out  and  remove  the  distress  (^).  In  making  a 
distress  for  rent,  circumstances  may  occur  which  may  require 
the  presence  of  a  police  officer.  But  to  justify  the  landlord 
in  calling  him  in,  it  must  be  shown  that  his  presence  was 
rendered  necessary  either  from  threats  of  resistance  or  the 
apprehension  of  violence  (r). 

Practical  directions.  —  The  most  proper  manner  of  making 
a  distress  is  for  the  person  distraining,  whether  the  landlord 
himself  or  his  bailiff  (accompanied  by  a  man  to  be  left  in 

(/)  Bannister  v.  Hyde,  2   E.   &  E.  forcible,  but   the    distrainer   did  not 

627 ;  29  L.  J.,  Q.  B.  141 ;  Eldridge  v.  return  for  three  weeks. 

Stacey,  15  C.  B.,  N.  S.  458.  (o)  Kerby  v.  Harding:,  (3  Exch.  234. 

(tk)  Russell  V.  Rider,  6  C.  &  P.  416.  (;))  Smith  v.  Farr,  3  F.  &  F.  505. 

(n)  Eldridge  v.  Stacey,   15   C.  B.,  (7)  Pugh  v.  Griffith,  7  A.  &  E.  827. 

N.  S.  458.     Here   the  expulsion  was  (?•)  Skidmore  v.  Booth,  0  C.  &  P. 

777. 

725 


*464  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  10. 

possession),  to  go  into  the  house,  or  upon  any  part  of  the 
premises  out  of  which  the  rent  issues,  and  there  select  and 
seize  articles,  not  privileged  from  distress  (s),  of  sufficient 
value  to  raise,  on  a  broker's  sale,  the  amount  for  which  the 
distress  is  made,  and  the  expenses  of  the  distress ;  or,  if 
necessary,  to  seize  the  whole,  by  taking  hold  of  some  piece 
of  furniture  or  other  article  and  saying,  "•  I  distrain  this  in 
the  name  of  all  the  goods  on  the  premises  "  (t),  or  to  that 
effect.  There  could  be  no  harm  in  adding,  "except  those 
privileged  from  distress."  There  need  not  be  an  actual  seiz- 
ure of  the  property  distrained  on  (u)^  any  expression  of  in- 
tention to  distrain  being  sufficient  (a:).  Thus,  where  a  land- 
lord to  whom  rent  was  in  arrear,  on  hearing  his  tenant  and  a 
stranger  disputing  about  removing  a  lathe,  entered  the  house, 
and  laying  his  hands  on  the  machine,  said,  "  I  will  not  suffer 
this,  or  any  of  the  things,  to  go  off  the  premises  till  ni}'  rent 
is  paid,"  the  distress  was  held  to  be  sufficiently  made  (?/). 
Where  a  landlord's  agent  went  upon  the  tenant's  premises, 
walked  round  them  without  touching  anything,  and  gave  the 

usual  notice  of  distress  as  to  certain  of  the  goods 
[*464]   (of  much  *  more  than   sufficient  value),  and  then 

went  away  without  leaving  any  one  in  possession,  it 
was  held  that  this  was  a  sufficient  seizure  to  enable  the  ten- 
ant to  sue  the  landlord  for  an  excessive  distress  (2).  Where 
a  broker  went  to  the  tenant's  house  and  pressed  for  payhient 
of  rent  alleged  to  be  due,  and  of  a  sum  for  the  expense  of 
the  levy,  but  touched  nothing  and  made  no  inventory,  and 
the  tenant  then  paid  the  rent  and  expenses  under  protest,  on 
which  the  broker  witlidrew:  it  was  held,  in  an  action  against 
the  landlord  for  an  excessive  distress,  that  he  could  not  say 
there  had  been  no  actual  distress  (a).  But  a  declaration  by 
a  landlord  as  against  the  grantee  of  a  bill  of  sale  that  the 
landlord  means  not  to  allow  goods  to  be  removed  until  his 

(s)  Ante,  Sect.  8,  p.  436.  (y)  Wood  v.  Nunn,  5  Bing.  10. 

(<)  Dodd  V.  Morgan,  0   Mod.  215;  (z)  Swann  v.  Earl  of  P'almoutb,  8 

Draper  .;.   Thompson,  4  C.  &  V.  84;  B.  &  C.  45G. 

Bullen,  131.  (a)  Hutchins  v.  Scott,  2  M.  &  W. 

(m)  Smith  L.  &  T.  224  (2nd  ed.).  809. 

(x)  Cramer  v.  Mott,  L.  R.,  5  Q.  B. 
357;  30  L.  J.,  Q.  B.  172. 

726 


Cu.  XI.  S.  10.]  PROCEEDINGS    IN   DISTRESS.  *464 

rent  be  paid,  and  that  he  is  prepared  to  use  force  to  prevent 
their  removal,  has  been  held  not  to  be  a  conversion  by  the 
landlord  (/>). 

Things  privileged,  not  to  be  taken.  —  In  making  the  seizure 
•care  must  be  taken  not  to  distrain  on  anything  absolutely 
privileged  from  distress,  ex.  gr.  tenants'  fixtures  (tf),  nor 
anything  privileged  sub  modo,  i.  e.  provided  there  be  other 
sufficient  distress  on  the  premises,  ex.  gr.  the  tools  of  a  man's 
trade  (e). 

Nor  an  excessive  quantity.  —  Nor  must  the  goods  distrained 
be  excessive  in  quantity  or  value,  i.  e.  much  beyond  what  is 
necessary  to  satisfy  the  actual  arrears  of  rent,  and  the  costs 
of  the  distress  (c?).  The  value  of  the  goods  should  be  esti- 
mated at  what  they  will  probably  produce  at  a  broker's  sale 
and  not  according  to  their  value  to  the  tenant  (e).  The 
broker's  appraisement  is  not  evidence  against  the  tenant  as 
to  the  value  (.f ).  The  broker  who  made  it  should  be  called. 
If  there  be  no  other  distress  on  the  premises,  the  taking  of 
one  entire  thing,  though  of  considerably  greater  value  than 
the  rent,  is  not  excessive  (,9').  An  action  lies  for  an  exces- 
sive distress  of  growing  crops,  the  probable  produce  of  which 
is  capable  of  being  estimated  at  the  time  of  seizure  (A)  :  pro- 
vided the  tenant  thereby  sustains  actual  loss  and  damage, 
but  not  otherwise  (^).  The  distress  should  not  extend  to 
the  whole  crop,  where  part  would  suffice. 

Amount    to   be   distrained  for.  —  The  distress  should  not  be 

(b)  England  v.  Cowley,  L.  R.,  8  Ex.  ( /)  Smitli  v.  Ashford,  29  L.  J.,  Ex. 
120;  42  L.  J.,  Ex.  80;  28  L.  T.  67,       259. 

diss.  Martin,  B.  (.9)  Avenell  v.  Croker,  Moo.  &  M. 

(c)  For  a  list  of  things  privileged  172;  Field  v.  Mitchell,  6  Esp.  71; 
absolutely  and  sub  modo  respectively,  Sells  v.  Hoar,  1  Bing.  401  ;  1  C.  &  P. 
see  ante,  4^S>.  28;  explained  11  Exch.  876;    Roden 

(d)  52  Hen.  3,  c.  4  (Statutes  of  r.  Eyton,  6  C.  B.  427 ;  Tancred  v. 
Marlebridge)  ;  2  Inst.  107,  cited  6  C.  Leyland  (in  error),  16  Q.  B.  667, 
B.  480;    Wells  v.  Moody,  7  C.  &  P.  Maule,  J. 

59;  Field  v.  Mitchell,  6  Esp.  71 ;  Wil-  (A)  Piggott  v.  Birtles,  1  M.  &  W. 


loughby  V.  Backhouse,  2  B.  &  C.  821 
Biggins  V.  Goode,  2  C.  &  J.  364 
Knight  V.  Egerton,  7  Exch.  407 
Whitworth  v.  Maden,  2  C.  &  K.  517 
Smith  V.  Ashforth,  29  L.  J.,  Ex.  259 
(e)  Wells  V.  Moody,  7  C.  &  P.  59 


441. 

(i)  Proudlove  v.  Twemlow,  1  Cr.  & 
Mee.  326 ;  Owen  v.  Leigh,  3  B.  &  A. 
470  ;  Rodgers  v.  Parker,  18  C.  B.  112; 
but  see  Chandler  v.  Doulton,  3  H.  & 
C.  553;  34  L.  J.,  Ex.  89,  where  nomi- 
nal damages  were  held  recoverable. 

727 


*465  DISTRESS   FOR   KENT.  [Ch.  XI.  S.  10. 

luade  for  more  rent  than  is  really  owing:  but  if  there  be 
any  doubt  or  dispute  on  that  point,  and  no  tender  has 
[*465]  *been  made  by  the  tenant,  the  landlord  may,  with 
comparative  safety,  distrain  for  all  that  he  claims, 
although  in  the  result  it  appears  to  be  more  than  is  really 
in  arrear  and  unpaid.  No  action  can  be  maintained  against 
him  merely  for  distraining  for  too  much  rent^  unless  it  appear 
by  the  evidence  that  the  goods  seized  and  sold  were  excessive 
with  reference  to  the  amount  of  the  actual  arrears  (/t) ;  not 
even  where  it  is  alleged  that  the  distress  was  made  mali- 
ciously (^).  The  reason  is,  that  the  landlord  is  legally  entitled 
to  distraiii  for  something,  although  perhaps  not  for  all  that 
he  claims  ;  and  there  is  no  duty  on  liis  part  to  inform  the 
tenant  for  what  he  distrains :  on  the  contrary,  it  is  the  duty 
of  the  tenant,  who  is  presumed  to  know  what  rent  he  owes, 
to  tender  at  his  peril  a  sufficient  sum  to  satisfy  the  amount, 
with  or  without  expenses  as  the  case  may  require,  and  until 
he  has  done  that  he  has  no  cause  of  complaint  (w).  Upon 
the  same  principle,  when  the  amount  of  a  simple  contract 
debt  is  disputed,  the  debtor  must,  at  liis  peril,  make  a  suffi- 
cient tender ;  otherwise  the  creditor,  although  he  claims  too 
much,  may  recover  what  is  really  due  to  him,  with  costs. 

The  broker  should  show  the  cause  of  his  making  the  distress, 
if  required  to  do  so,  but  if  not  required,  he  may  distrain  gener- 
ally (w).  The  landlord  or  his  agent  or  bailiff  is  not  bound 
by  any  notice  of  distress  given,  but  may  show  that  more  rent 
was  due  than  is  therein  stated  {o).  The  tenant  must  prove 
that  his  goods  to  an  excessive  amount  or  value  were  dis- 
trained, l)ut  it  is  not  necessary  to  show  that  they  were  sold 
or  actually  taken  away ;  the  seizure  as  a  distress  is  a  suffi- 

(^•)  Crowder  v.  Self,  2  Moo.  &  R.  ror),  13  C.  R.  285,  207;  22  L.  J.,  C. 

190;  Tancrc'd  v.  Loyland  (in  error),  P.  110. 

10  Q.  B.  009;  Glynn  v.  Tliomas,  11  («,)  Glynn     t\   Thomas,    11   Exch. 

Excli.  870;  25  L.  J.,  Kx.  125;  French  873,  Erie,  .J.  ;  Tancred  v.  Leyland,  10 

V.  Phillips,  1   II.  &  N.  504;  20  L.  J.,  Q.  B.  009. 

Ex.  82 ;  LormjT  ,..  Warl)iirton,  E.,  B.  (n)  Buller's  case,  1  Leon.  50. 

&  E.  507  ;  28  L.  J.,  Q.  B.  .31 ;  over-  (o)  Gwinnet    r.    I'iiillip.s,   3   T.    R. 

ruling  Taylor  v.  Ilenniker,  12  A.  &  R43 ;  Crowther  v.  Ramshottom,  7  T. 

E.  488.  R.    or,8;    Ganihrell    r.    Earl    of    Fal- 

(/)  Stevenson  r.   Newnham   (in  er-  mo>itli,  4  A.  &  E.  73;  Trent  v.  Hunt, 

9  Kxcli.  14. 

728 


Ch.  XI.  S.  10.]  PROCEEDINGS    IN   DISTRESS.  *466 

cient  cause  of  action  (jt?).  And  it  will  be  no  defence  that 
after  the  excessive  distress  was  made  the  tenant  authorized 
the  defendant  to  sell,  and  gave  him  other  powers  with  regard 
to  the  goods  seized  (^q). 

Impounding.  —  As  soon  as  possible  after  the  goods  have 
been  distrained  they  should  be  impounded  (r) ;  especially 
where  there  is  any  dispute  between  the  parties  as  to  the 
amount  of  arrears  really  due.  Until  such  impounding  the 
tenant  may  tender  what  he  admits  to  be  due,  with  expenses, 
and  if  such  tender  be  sufficient  it  will  be  illegal  to  proceed 
further  with  the  distress  (s).  But  when  the  goods 
are  impounded  *  they  are  in  the  custody  of  the  law,  [*466] 
and  a  tender  is  too  late  to  make  the  subsequent  pro- 
ceedings illegal  (f).  Nevertheless,  if  a  tender  be  made  after 
the  impounding,  but  within  the  five  days  allowed  the  tenant 
to  replevy,  and  the  landlord  afterwards  proceeds  to  sell  the 
distress,  the  tenant  may  maintain  a  special  action  on  the 
case,  founded  on  the  equity  of  the  statute  2  W,  &  M.  sess.  1, 
c.  5,  s.  2  (u).  To  avoid  this  the  landlord  should  abstain  from 
selling  (after  such  a  tender),  and  leave  the  tenant  to  obtain 
his  goods  by  a  replevin  (which  is  the  only  remedy),  in  which 
the  tenant  will  have  to  pay  all  that  is  really  due,  with  the 
costs  of  and  incident  to  the  distress,  replevy  and  action.  If 
no  tender  be  made,  the  landlord  should  not  sell  for  more  than 
the  actual  arrears  of  rent,  with  expenses,  notwithstanding 
he  may  have  claimed  more  in  his  notice  of  distress.  He  now 
has  the  opportunity  of  correcting  any  mistake  previously 
made  on  that  point,  although  perhaps  he  may  be  liable  to 
some  damages  for  having  taken  an  excessive  quantity  of 
goods  as  a  distress. 

{p)  Sells  V.  Hoare,  1  Bing.  401;  8  (0  Six  Carpenters'  case,  8  Co.  R. 

Moo.  453;  Baylis   v.  Usher,  4  M.  &  146  a;  1  Smith,  L.  C.  iBo  (7th  ed.)  ; 

P.  790.  Firth  v.  Purvis,  5  T.  R.  4.']2  ;  Thomas 

(9)  Willoughby  f.  Backhouse,  2  B.  v.  Harries,  1  M.  &  G.  695;  Ladd  r. 

&C.  821;  Sells  r.  Hoar,  s«pra.  Thomas,    12   A.    &  E.    117;    Ellis    r. 

(r)  Post,  US.  Taylor,    8    M.    &    W.  415;    Teiinaiit 

(s)  Vertue  v.  Beasley,  1  Moo.  &  R.  v.  Field,  8  E.  &  B.  336;  BuUen  &  L. 

21 ;  Branscomb  r.  Bridges,  1  B.  &  C.  PI.  318  (3rd  ed.). 
145;    Holland  v.  Bird,  10   Bing.  15;  («)  Johnson  v.  Upham,  2  E.  &  E. 

Ladd  V.  Thomas,   12  A.   &   E.    117;  250;  28  L.  J.,  Q.  B.  252;  overruling 

Evans  v.  Elliott,  5  A.  &  E.  142.  Ellis  i'.  Taylor,  8  M.  &  W.  415. 

729 


*467  DISTRESS   FOR    RENT.  [Ch.  XI.  S.  10. 

Inventory.  —  After  a  seizure  has  been  made,  as  above 
pointed  out,  it  is  proper  for  the  landlord  or  his  bailiff  to  make 
an  inventory  (a;)  of  as  many  goods  as  are  judged  sufficient 
to  cover  the  rent  distrained  for,  and  also  the  charges  of  the 
distress.  Although  an  inventory  need  not  be  as  exact  and 
minute  as  a  specification,  yet  it  ought  to  mention  the  goods 
taken,  in  such  a  manner  that  the  tenant,  and  others,  may 
know  what  is  intended  to  be  distrained.  The  following 
inventory,  '"  one  clock  and  weights,  &c.,  and  any  other  goods 
and  effects  that  maybe  found  in  and  about  the  said  premises, 
to  pay  the  said  rent  and  expenses  of  this  distress,"  was  con- 
sidered by  the  court  objectionable,  and  was  held  sufficient 
only  on  the  ground  that  the  distress  was  in  fact  meant  to 
include  all  the  goods  on  the  premises  Qy').  A  notice  of  dis- 
tress stating  that  the  landlord  had  distrained  the  several 
goods,  chattels  and  effects  specified  in  the  schedule :  which 
schedule,  after  enumerating  certain  goods,  concluded  thus : 
—  "and  all  other  goods,  chattels  and  effects  on  the  said 
premises,  that  mai/  he  required  in  order  to  satisfy  the  above 
rent,  together  with  all  necessary  expenses :  "  was  held  to  be 
too  vague  and  uncertain  to  justify  the  sale  of  goods  of  a 
stranger  which  he  had  deposited  on  the  premises  (z). 

Notice  of  distress,  &o.  —  After  the  inventory  is  taken  it  is 

necessary  to  give  a  notice^  m  writing  (a)  to  the  ten- 

[*4G7]  ant  of  the  fact  of  the  distress  having  been  made  *  and 

(t)  See  Form,  Appendix  D.,  No.  3.  (a)  Wilson  v.  Nightingale,  8  Q.  B. 

{}))  Wakeman  v.  Lindsey,  14  Q.  B.  1034,  jiost,  477  ;  see  the  Form,  Ap- 
625.  pendi.x  D.,  No.  4. 

(s)  Kerby  v.  Harding,  0  Exch.  234; 
20  L.  J.,  Ex.  162. 

'  Notice  of  distress.  —  Notice  given  to  tenant  will  bin<l  owner.  Cald- 
oh'ugh  r.  IloUingswortli,  8  W.  &  S.  (Pa.)  .302.  In  computing  time,  day  on 
wliieii  distress  is  made  is  to  be  excluded.  Brisben  v.  Wilson,  (iO  I'a.  St.  452 ; 
.M'Kinney  v.  Header,  G  Watts  (Pa.)  34.  Sunday  (being  ilii-x  mm  juridicus)  is 
to  be  excluded.     Same. 

Notice  is  essential  to  validity  of  appraisal  and  sale.  Briggs  v.  Large,  30 
Pa.  St.  287. 

In  several  cases  it  has  been  held  that  failure  to  give  notice,  if  there  is  no 
sale,  does  not  make  landlord  a  trespasser  ab  initio.  M'Kinney  v.  Header,  6 
Watts  (Pa.)  34  ;  Keller  v.  Weber,  27  Md.  (iOO.  The  first-named  case  was 
where  the  jjroperty  was  replevied  by  tiie  lessee,  and  the  last  case  a  case  of 
distress  made  after  death  of  lessee. 

7'50 


Cii.  XI.  S.  10.]  PliOCEEDINGS    IN   DISTRESS.  *467 

the  time  when  the  rent  and  charges  must  be  paid  or  the 
goods  replevied.  Tliis  is  usually  done  by  wi'iting  such 
notice  at  the  bottom  of  the  inventory  (6).  A  true  copy  of 
the  inventory  and  notice  must  then  be  served  personally 
upon  the  tenant  or  the  owner  of  the  goods,  or  left  at  the 
house,  or  if  there  be  no  house  on  the  premises,  upon  the  most 
notorious  place.  There  should  in  all  cases  be  a  witness 
present  to  prove  the  regularity  of  the  proceedings.  When 
the  distress  has  been  thus  made,  it  is  the  safest  way  to  re- 
move the  goods  immediately,  and  in  the  notice  to  acquaint 
the  tenant  where  they  are  removed  to.  The  place  to  which 
they  are  so  removed  must  be  mentioned  in  the  notice  (c). 
In  many  cases,  however,  the  tenant  for  his  own  convenience 
requests  the  landlord  to  permit  them  to  remain  on  the  prem- 
ises, and  consents  to  allow  him  to  retain  possession  beyond 
the  five  days ;  and  in  such  cases  a  written  consent  should  be 
procured  (c?),  and  some  person  left  in  possession  of  the  goods 
upon  the  premises.  No  stamp  is  necessary  to  such  written 
consent,  or  to  a  licence  to  re-enter  and  resume  possession  in 
consideration  of  the  distress  being  withdrawn  for  a  time  («). 

(e)  Distress  on  Goods  fraudulently  removed} , 

Fraudulent  removal.  —  To  prevent  the  clandestine  removal 
of  goods  off  the  demised  premises  by  tenants,  to  avoid  dis- 
tress for  rent,  the  8  Ann.  c.  14,  s.  2,  authorized  landlords  to 
follow  and  distrain  them  within  fi,ve  days  after  such  removal. 

Goods  may  be  seized  w^ithin  thirty  days.  —  And  by  11  Geo. 
2,  c.  19,  s.  1,  this  term  was  extended  to  thirty  days,  with  a 
power  to  break  open  places  of  concealment,  but  a  saving  for 

(b)  See  Forms,  Appendix  D.,  Nos.  (e)  Hill  v.  Ramm,  5  M.  &  G.  789 ; 
4,  5.                                                                 Fishwick  v.  Milnes,  4  Exch.  825;  Cox 

(c)  11  Geo.  2,  c.  19,  s.  9.  v.  Bailey,  6  M.  &  G.  193. 
(c?)  See  Form,  Appendix  C,  Sect.  3. 

1  Distress  on  goods  fraudulently  removed.  — The  time  limited  in  New 
Jersey,  Pennsylvania,  Virginia,  and  West  Virginia  is  thirty  days  ;  in  Nova 
Scotia,^ twenty-one  days  ;  in  Quebec,  eight  days  ;  in  Delaware,  forty  days  ;  in 
Maryland,  twenty  days  ;  in  Louisiana,  fifteen  days  ;  and  special  provisions 
exist  in  New  Brunswick,  Illinois,  Georgia,  Kentucky,  Texas,  and,  perhaps,  in 
other  states,  for  protecting  the  landlord's  interests. 

7?.l 


*468  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  10. 

bona  fide  sales.  By  sect.  1,  it  is  enacted  that  "  in  case  any 
tenant  or  tenants,  lessee  or  lessees  for  life  or  lives,  term  of 
years,  at  will,  sufferance  or  otherwise,  of  any  messuages, 
lands,  tenements  or  hereditaments,  upon  the  demise  or  hold- 
ing whereof  any  rent  is  or  shall  be  reserved,  due  or  made 
payable,  shall  fraudulently  or  clandestinely  convey  away,  or 
carry  off  or  from  such  premises,  his,  her  or  their  goods  or 
chattels  to  prevent  the  landlord  or  lessor,  landlords  or  lessors 
from  distraining  the  same  for  arrears  of  rent  so  reserved,  due 
or  made  payable,  it  shall  and  may  be  lawful  to  or  for  every 
landlord,  &c.,  or  any  person  or  persons  by  him,  her  or  them 
for  that  purpose  lawfully  empowered,  within  the  space  of  30 
days  next  ensuing  such  conveying  away  or  carrying  off  such 
goods  or  chattels  as  aforesaid,  to  take  and  seize  such  goods 
and  chattels  wherever  the  same  shall  be  found,  as  a  distress 
for  the  said  arrears  of  rent ;  and  the  same  to  sell  or  other- 
wise dispose  of,  in  such  manner  as  if  the  said  goods 
[*468]  and  *  chattels  had  actually  been  distrained  by  such 
landlord,  &c.,  in  and  upon  such  premises  for  such 
arrears  of  rent." 

Saving  for  bona  fide  sale.  —  Sect.  2  provides,  "that  no  land- 
lord or  lessor,  or  other  person  entitled  to  such  arrears  of 
rent,  shall  take  or  seize  any  such  goods  or  chattels  as  a  dis- 
tress for  the  same,  which  shall  be  sold  bona  fide  and  for  a 
valuable  consideration,  before  such  seizure  made,  to  any  per- 
son or  persons  not  privy  to  such  fraud  as  aforesaid"  (/). 

Power  to  break  open  places  of  concealment  -with  aid  of  con- 
stable, &c.  —  Sect.  7  enacts,^  "that  where  any  goods  or  chattels 
fraudulently  or  clandestinely  conveyed  or  carried  away  by 
any  tenant  or  tenants,  lessee  or  lessees,  his,  her  or  their  ser- 
vant or  servants,  agent  or  agents,  or  other  person  or  persons 
aiding  oi-  assisting  therein,  shall  be  put,  placed  or  kept  in 
any  house,  barn,  stable,  out-liouse,  yard,  close  or  place,  locked 
up,  fastened  or  otherwise  secured,  so   as   to   prevent  such 

(f)  Sections  .3-(;  are  stated,  post,  470. 

'  In  several  of  the  states  tliere  are  special  statutory  provisions  authorizing 
the  officer  or  laniUord,  with  the  aid  of  an  officer,  to  break  and  enter  to  procure 
goods  fraudulently  removed.     See  ante,  note,  "  Entry,  how  made." 

782 


Ch.  XI.  S.  10.]  PROCEEDINGS   IN   DISTRESS.  *469 

jyoods  or  chattels  from  being'  taken  and  seized  as  a  distress 
for  arrears  of  rent ;  it  shall  and  may  be  lawful  for  the  land- 
lord or  landlords,  lessor  or  lessors,  his,  her  or  their  steward, 
bailiff,  receiver,  or  other  person  or  persons  empowered,  to 
take  and  seize  as  a  distress  for  rent  such  goods  and  chattels 
(first  calling  to  his,  her  or  their  assistance  the  constable, 
headborough,  borsholder  or  other  peace-officer  of  the  hun- 
dred, borough,  parish,  district  or  place  where  the  same  shall 
be  suspected  to  be  concealed,  who  are  hereby  required  to  aid 
and  assist  therein);  and,  in.  case  of  a  dwelling-house  (oath 
being  also  first  made  before  some  justice  of  the  peace  of  a 
reasonable  ground  to  suspect  that  such  goods  or  chattels  are 
therein)  in  the  day  time,  to  break  open  and  enter  into  such 
house,  barn,  stable,  out-house,  yard,  close  and  place,  and  to 
take  and  seize  such  goods  and  chattels  for  the  said  arrears  of 
rent,  as  he,  she  or  they  might  have  done  by  virtue  of  this  or 
any  former  act,  if  such  goods  and  chattels  had  been  put  in 
any  open  field  or  place."  The  subsequent  proceedings  under 
a  distress  after  a  fraudulent  removal  are  precisely  the  same 
as  in  ordinary  cases. 

What  cases  are  within  statutes  as  to  "  fraudulent  removal."  — 
To  justify  a  distress  under  this  statute  the  defendant  w^as 
bound  to  plead  speciall}',  even  before  the  Judicature  Act  (,</). 
Where  the  removal  has  been  after  the  landlord  has  conveyed 
away  his  reversion,  he  cannot  seize  under  the  statute  (7i); 
The  removal  must  have  taken  place  after  the  rent  became 
due  (^),  and  as  rent  becomes  due  on  the  morning  of  the  day 
on  which  it  is  payable,  but  it  is  not  in  arreai'  until  the  follow- 
ing day  (A;),  if  the  tenant  fraudulently  removes  his  goods  on 
the  very  day  the  rent  becomes  due,  the  landlord  may  on  the 
next  day  (but  not  before),  or  within  thirty  days  after  such 
removal,  follow  and  distrain  upon  them  pursuant  to  the 
statute  (/r). 

*  But  after  the   tenant   has   given  up  possession  [*469] 

(//)  Fletcher  1-.  Marillier,  9  A.  &  E.  (/)  Watson    v.    Main,   3   Esp.    15; 

457;  West  v.  Nibbs,  4  C.  B.  172;  Rand  r.  Vaughan,  1  Bing.  N.  C.  767  ; 
Williams  v.  Roberts,  7  Exch.  618.  Bullen,  127. 

(A)  Ashmore  v.  Hardy,  7  C.  &  P.  (k)  Dibble  v.  Bowater,  2  E.  &  B. 

501.  '  564. 

733 


*469  DISTBESS   FOR   RENT.  [Ch.  XI.  S.  10. 

upon  the  expiration  of  a  tenancy,  the  landlord  cannot  follow 
and  seize,  inasmuch  as  the  statute  of  Anne  (8  Anne,  c.  14, 
ss.  6  and  7),  which  allows  a  distress  after  the  expiration  of 
a  tenancy,  allows  it  only  when  the  tenant  continues  in  actual 
possession  Q}. 

The  act  applies  to  all  cases  where  a  landlord  is,  by  the 
conduct  of  his  tenant  in  removing  goods  from  premises  for 
which  rent  is  due,  turned  over  to  the  barren  right  of  bring- 
ing an  action  for  his  rent.  Thus  where  a  tenant  openly,  and 
in  the  face  of  day,  and  with  notice  to  his  landlord,  removed 
his  goods  without  leaving  sufficient  on  the  premises  to  satisfy 
the  rent  then  due,  and  the  landlord  followed  and  distrained 
the  goods,  it  was  held,  that  although  the  removal  might  not 
be  clmidestine^  yet  if  it  was  fraudulent  (which  was  a  ques- 
tion for  the  jury),  the  landlord  was  justified  under  the 
statute  (m). 

It  is  to  be  observed  that  the  words  of  the  act  are  "  fraudu- 
lently or  clandestinely."  The  mere  removal  is  not  of  itself 
fraudulent  as  against  the  landlord :  to  justify  him  in  follow- 
ing them  he  must  show  that  the  goods  were  removed  with  a 
view  to  elude  a  distress,  and  also  that  sufficient  goods  were 
not  left  upon  the  premises  (n).  It  would  seem  that  it  is  a 
question  for  the  jury  whether  the  removal  be  fraudulent 
within  the  statute,  although  it  be  admitted  at  the  trial  that 
the  removal  was  to  avoid  a  distress  (o). 

Statute  applies  to  goods  of  tenant  only.  —  The  statute  ap- 
plies to  the  goods  of  the  tenant  only,  and  not  to  those  of  a 
stranger  or  lodger ;  therefore  a  defence  justifying  the  follow- 
ing goods  off  the  premises,  and  distraining  them  for  rent  in 
arrear,  must  show  that  they  were  the  tenant's  goods  (/>);^ 

(/)  Gray  v.  Stait,  L.  R.,  11  Q.  B.  D.  T.  88,  wliere  it  was  ruled  by  Pattcson, 

6(58 ;  52  L.  .7.,  Q.  B.  412  ;  49  L.  T.  288  ;  J.  (Parry  v.  Duncan  bciufr  cited),  that 

31  W.  R.  (i(i2  —  C.  A.  the  landlord  need  not  prove  that  a 

(wj)  Oppcrman  !•.  Smith,  4  D.  &  R.  sufficient  distress  was  not  left  on  the 

33 ;   Bach  v.  Meats,  5  M.  &  S.  200.  premises. 

(n)  Tarry  v.  Duncan,  7   Binf,^  243 ;  (o)  John  v.  Jenkins,  1  C.  &  M.  227  ; 

Inkop  «;.  Morchurch,  2  F.  &  F.  501.  Tnknp   v.  Morchurch,  2  F.  &  F.  501. 

But  888  Gilham  v.  Arkwright,  16  L.  (/»)  Thornton  r.  Adams,  5  M.  &  S. 

1  See  ante,  sec.  8,  note,  "  Goods  of  strangers."  It  matters  not  with  what 
intention  they  were  removed,  they  cannot  he  followed. 

784 


Ch.  XI.  S.  10.]  PROCEEDINGS    LN   DISTRESS.      •  *470 

but  the  trustees  of  a  bankrupt  lessee  are  considered  as  the 
actual  tenants  (^q).  It  is  not  necessary  that  the  party  upon 
whose  land  the  goods  are  seized  after  removal  there  should 
himself  be  party  or  privy  to  the  fraud  (r). 

Presence  of  constable.  —  The  presence  of  a  constable  is 
required  and  must  be  stated  in  the  defence  where  doors  or 
gates  are  broken  open  (s).  The  presence  of  a  special  con- 
stable appointed  for  the  occasion  is  sufficient  (t). 

Metropolitan  Police  District.  —  In  the  Metropolitan  Police 
District,  by  virtue  of  2  &  3  Vict.  c.  47,  s.  67,  any  constable 
is  empowered  to  stop  and  detain,  until  due  inquiry  can  be 
made,  all  carts  and  carriages  which  he  shall  find 
*  employed  in  removing  the  furniture  of  any  house  [*470] 
or  lodging  between  the  hours  of  eight  in  the  evening 
and  six  in  the  following  morning,  or  whenever  the  constable 
shall  have  good  grounds  for  believing  that  such  removal  is 
made  for  the  purpose  of  evading  the  payment  of  rent.  It  is 
also  provided,  by  further  sections  of  the  same  statute,  that 
both  the  tenant  fraudulently  removing  goods,  and  also  all 
persons  assisting  him,  shall  forfeit  to  the  landlord  double  the 
value  of  the  goods  distrained,  to  be  recovered  before  justices 
if  the  goods  be  worth  less  than  50?.,  or  by  an  action  of  debt 
if  they  be  worth  more. 

Forfeiture  of  double  value.  —  By  11  Geo.  2,  c.  19,  S.  3,  "to 
deter  tenants  from  such  fraudulently  conveying  away  their 
goods  and  chattels,  and  others  from  wilfully  aiding  or  assistiyig 
therein  or  concealing  the  same,^^  it  is  enacted,  "that  if  any  ten- 
ant or  lessee  shall  fraudulently  remove  and  convey  away  his 
or  her  goods  or  chattels  as  aforesaid,  or  if  any  person  or  per- 
sons shall  wilfullfi  and  knowingly  aid  or  assist  any  such  tenant 
or  lessee  in  such  fraudulent  conveying  away  or  carrying  off  of 
any  part  of  his  or  her  goods  or  chattels,  or  in  concealing  the 
same,  all  and  every  person  or  persons  so  offending  shall  for- 
feit and  pay  to  the  landlord  or  landlords,  lessor  or  lessors, 

38;   Postman    v.  Harrell,  0   C.   &   P.  (r)  Williams  v.  Roberts,  7   Exch. 

225;  Fletcher  v.  Marillier,  9  A.  &  E.  618. 

457 ;  Foulger  v.   Taylor,   5   H.  &  N.  (s)  Rich  v.  Woolley,  7  Bing.  651. 

202.  (t)  Cartwright  u.  Smith,  1  Moo.  & 

(q)  Welch  v.  Myers,  4  Camp,  368.  R.  284. 

735 


*471  .  DISTRESS   FOR    RENT.  [Ch.  XI.  S.  10. 

from  whose  estates  such  goods  and  chattels  were  fraudu- 
lently carried  off  as  aforesaid,  double  the  value  of  the  goods 
by  him,  her  or  them  respectively  carried  off  or  concealed  as 
aforesaid,  to  be  recovered  by  action  of  debt." 

"Where  goods  worth  less  than  50?.  —  Sect.  4  provides,  "  that 
where  the  goods  and  chattels  so  fraudulently  carried  off  or 
concealed  shall  not  exceed  the  value  of  50Z.,  it  shall  and  may 
be  lawful  for  the  landlord  or  landlords,  from  whose  estates 
such  goods  or  chattels  were  removed,  his,  her  or  their  bailiff, 
servant  or  agent,  in  his,  her  or  their  behalf,  to  exhibit  a  com- 
plaint in  writing  against  such  offender  or  offenders,  before 
two  or  more  justices  of  the  peace  of  the  same  county,  riding 
or  division  of  such  county,  residing  near  the  place  whence 
such  goods  and  chattels  were  removed,  or  near  the  place 
where  the  same  were  found,  not  being  interested  in  the  lands 
or  tenements  whence  such  goods  were  removed ;  who  may 
summon  the  parties  concerned,  examine  the  fact  and  all 
proper  witnesses  upon  oath,  or  if  any  such  witness  be  one  of 
the  people  called  Quakers,  upon  affirmation  required  by  law ; 
and  in  a  summary  way  determine  whether  such  person  or 
persons  be  guilty  of  the  offence  with  which  he  or  they  are 
charged ;  and  to  inquire  in  like  manner  of  the  value  of  the 
goods  and  chattels  by  him,  her  or  them  respectively  so  fraud- 
ulently carried  off  or  concealed  as  aforesaid :  and  upon  full 
proof  of  the  offence,  by  order,  under  their  hands  and  seals,  the 
said  justices  may  and  shall  adjudge  the  offender  or  offenders 
to  pay  double  the  value  of  the  said  goods  and  chattels  to 
such  landlord  or  landlords,  his,  her  or  their  bailiff,  servant  or 
agent,  at  such  time  as  such  justices  shall  appoint;  and,  in 

case  the  offender  or  offenders,  having  notice  of  such 
[*471]   order,  shall  refuse  or  *  neglect  so   to  do,  may  and 

shall,  by  warrant  under  their  hands  and  seals,  levy 
the  same  by  distress  and  sale  of  the  goods  and  chattels  of 
the  offender  or  offenders  ;  and  for  want  of  such  distress  may 
commit  the  offender  or  offenders  to  the  house  of  correction, 
there  to  be  kept  to  hard  labour,  without  hail  or  mainprize,  for 
the  space  of  six  months,  unless  the  money  so  ordered  to  be  paid 
af(  aforesaid  shall  be  woncr  satisfied T 

Appeal  to  quarter  sessions.  —  The  words  printed  in  italics 

736 


Ch.  XI.  S.  10.]  PEOCEEDINGS   IN   DISTRESS.  *471 

are  repealed  by  the  Summary  Jurisdiction  Act,  1884  (47  & 
48  Vict.  c.  43).  Sections  o  and  6  provide,  "  that  it  shall  be 
lawful  for  any  person,  who  thinks  himself  aggrieved  by  such 
order  of  the  said  two  justices,  to  appeal  to  the  next  general 
or  quarter  sessions  for  the  same  county,  who  may  and  shall 
hear  and  determine  such  appeal,  and  give  such  costs  to  either 
party  as  they  shall  think  reasonable,  whose  determination 
therein  shall  be  final ; "  and  that  "  where  the  party  appeal- 
ingf  shall  enter  into  a  recognizance  with  one  or  two  sufficient 
surety  or  sureties  in  double  the  sum  so  ordered  to  be  paid, 
with  condition  to  appear  at  such  general  or  quarter  sessions, 
the  order  of  the  said  two  justices  shall  not  be  executed 
against  him  in  the  meantime." 

Decisions  on  statute  providing  for  recovery  of  double  value.  — 
The  third  section  of  the  above  act  is  so  far  penal,  that  it  is 
incumbent,  in  an  action  by  the  landlord  against  a  third 
party,  for  assisting  the  tenant  in  such  fraudulent  removal, 
to  bring  the  case  by  strict  proof  within  the  words  of  the  first 
section  (^ii)  ;  and  the  landlord  must  not  only  prove  that  the 
defendant  assisted  the  tenant  in  such  fraudulent  removal, 
but  also  that  he  was  privy  to  the  fraudulent  intent  of  the 
tenant  (a;).  But  a  creditor,  with  the  assent  of  his  debtor, 
may  take  possession  of  the  goods  of  the  latter,  and  remove, 
them  from  the  premises  for  the  purpose  of  satisfying  a  bon^ 
fide  debt,  without  incurring  the  penalty  inflicted  by  the  third 
section,  although  the  creditor  takes  possession  knowing  the 
debtor  to  be  in  distressed  circumstances,  and  under  an  appre- 
hension that  the  landlord  will  distrain  (3/).  In  an  action  on 
that  section  against  the  tenant  for  fraudulently  removing  his 
goods  from  off  the  premises  to  avoid  a  distress  for  rent,  it  is 
not  necessary  to  show  an  actual  participation  in  the  act,  if 
the  removal  was  with  his  privity  (s)  ;  and  in  such  a  case  it 
seems  that  it  is  immaterial  whether  the  removal  took  place 
by  night  or  with  any  particular  concealment.  In  an  action 
upon  the  statute  against  a  defendant  for  aiding  and  assisting 

(u)  Ante,  467.  (y)  Bach  v.  Meats,  5  M.  &  S.  200. 

(x)  Brooke  v.  Noakes,  8  B.  &  C.  (s)  Lister  v.  Brown,  1  C.  &  P.  121; 

o37,;  Reg.  v.  JJ.  of  Radnor,  9  Dowl.  3  D.  &  R.  601. 
90. 

737 


*472  DISTRESS   FOE   KENT.  [Ch.  XI.  S.  10. 

a  tenant  in  removing  and  concealing  his  cattle,  to  hinder  the 
landlord  from  distraining,  the  acts  and  orders  of  the  tenant 
are  admissible  evidence  of  his  own  fraud,  and  of  knowledge 
on  the  part  of  the  defendant,  if  by  other  evidence  he  is 
proved  to  have  contributed  to  the  facility  of  it.  Circum- 
stances of  suspicion  may  be  laid  before  the  jury  to 
[*472]  prove  such  a  fraudulent  co-operation  as  the  *  legis- 
lature contemplated,  and  it  is  not  necessary,  to  sup- 
port such  an  action,  that  it  should  be  proved  that  a  distress 
was  in  progress,  or  about  to  be  put  in  execution,  or  even 
contemplated ;  it  is  enough  if  the  rent  be  shown  to  be  in 
arrear,  and  that  the  goods  have  been  removed  afterwards  (a). 
A  variance  in  stating  the  amount  of  rent  in  arrear  was  held 
immaterial  even  before  the  Judicature  Act  (6). 

Decisions  on  sect.  4.  —  The  fourth  section,  wliich  gives  a 
summary  remedy  before  two  magistrates,  provided  the  value 
of  the  goods  shall  not  exceed  50?.,  does  not  take  away  the 
jurisdiction  of  the  High  Court  in  cases  where  the  goods  are 
of  less  than  that  value  (c).  And  the  fact  that  the  landlord 
in  the  first  instance  made  his  complaint  before  a  magistrate 
will  not  preclude  him  from  afterwards  maintaining  an  action ; 
for  the  remedy  given  by  that  section  is  cumulative,  and 
therefore  the  landlord  may  elect  at  his  option  which  course 
may  be  most  convenient  to  himself  ((7).  Justices  may  deter- 
mine whether  the  goods  have  been  fraudulently  removed, 
even  in  cases  where  there  are  conflicting  claims  to  the  premi- 
ses (e).  Justices,  either  of  the  county  from  which  tenants 
fraudulently  remove  goods,  or  of  that  in  which  they  are  con- 
cealed, may  convict  the  offenders  in  their  own  counties  (/). 
The  goods  need  not  be  enumerated  or  specified  in  the  order 
of  the  justices  ;  it  is  sufficient  if  they  find  the  value  (//). 
The  adjudication  of  the  justices  is  an  order  and  not  a  convic- 

(a)  Stanlpy   v.   Wliarton,  9  Price,  Price,  301;    10  Id.   138;    Bromley  v. 

301 ;  10  Id.  i:'.8  ;  Woodgate  r.  Knatch-  Iluldor,  1  Moo.  &  M.  175. 

bull,  2  T.  K.  154.  ((/)  Stanley  v.  Wharton,  0   Price, 

(6)  Gwinnet  t:  Phillips.  3  T.  11.  043.  301  ;  10  Id.  138. 

(c)  Ilorsfall  V.  Davy,  Holt,  147;  1  (e)  Coster r.  Wilson,  3  M.  &  W. 411. 

Stark.  11.  16i>;  Basten  v.  Carew,  3  B.  (/)  Rex  i'.  Morgan,  Cald.  157. 

&   C.   640;    Stanley    v.   Wliarton,    0  ('/)  l^^x  r.  Rabl)itts,0  I).  &  H.  343; 

Burn's  Justice,  tit.  Distress. 

788 


Cii.  XI.  S.  10.]  PROCEEDINGS    IN   DISTRESS.  *473 

tion,  and  cannot  therefore,  like  a  conviction,  be  returned  to 
the  sessions  in  an  amended  form  (li).  It  must  show  on  the 
face  of  it  that  the  party  removing  the  goods  was  tenant ; 
and  that  is  not  sufficiently  shown  by  stating,  that  on  com- 
plaint duly  made,  the  party  was  charged  with  having  fraudu- 
lently removed  his  goods  from  certain  premises  to  prevent 
A.  B.  from  distraining  them  for  arrears  of  rent  due  to  him 
for  the  said  premises,  and  that,  it  appearing  that  he  did  so 
remove,  &c.,  he  is  convicted  thereof.  It  would  seem,  also, 
that  the  order  should  state  that  the  complainant  was  the 
party's  landlord,  or  the  bailiff,  servant  or  agent  of  such  land- 
lord (^).  An  order  of  justices  convicting  a  person  aiding 
and  abetting  a  fraudulent  removal  of  goods  to  avoid  a  dis- 
tress, must  show  that  the  defendant  acted  wilfully  and 
knowingly  (A-).  An  order,  which  states  that  the  witnesses 
were  examined  upon  oath,  is  not  bad  because  it  omits  to 
state  that  they  were  examined  on  oath  as  to  the  value 
*  of  the  goods  removed ;  nor  is  the  warrant  on  such  [*473] 
an  order  invalid  for  omitting  to  state  that  the  wit- 
nesses were  examined  upon  oath  (?). 

Decision  on  sect.  5  as  to  appeal.  —  It  has  been  held  that  the 
appeal  under  section  5  is  subject  to  the  conditions  of  the 
Summary  Jurisdiction  Act,  1879  (42  &  43  Vict.),  c.  49, 
ss.  31  and  32,  and  that  therefore  notice  of  appeal  must 
be  given  within  seven  days  after  the  decision  appealed 
against  (w). 

(f)  Hoiv  Distress  impounded. 

Of  impounding  at  common  law.  —  At  common  law,  where  a 
distress  was  made,  the  cattle  or  goods  were  to  be  kept  in 
a  pound;  which  is  nothing  more  than  a  prison  for  that 
purpose,  and  is  either  overt,  that  is,  public  and  open  over- 
head, or  covert,  that  is,  private  and  covered  or  protected  from 

(Ji)  Reg.  V.  JJ.  of  Cheshire,  5  B.  &  (/)  Coster  v.  Wilson,  3  M.  &  W.  411. 

Adol.  4;>9  ;  Rex  r.  Bissex,  Saj^er,  ;304;  (w)  Reg.  •;;.  Justices  of  Shropshire, 

3  Burn's  Justice,  1109  (30th  eel.).  L.  R.,  6  Q.  B.  D.  609 ;  50  L.  J.,  M.  C. 

(/)  Kex  r.  Davis,  5  B.  &  Adol.  551.  72 ;  29  W.  R.  567. 

(A)  Reg.  V.  JJ.  of   Radnorshire,  9 
Dowl.  90. 

739 


*474  DISTRESS   FOR   RENT.  [Cn.  XI.  S.  10. 

the  rain,  &c.  (n).  Household  goods  and  other  things  liable 
to  damage  from  the  weather,  or  which  may  be  easily  carried 
away,  should  be  put  in  a  pound  covert  (o).  But  all  animals 
distrained  should  regularly  be  put  into  a  pound  overt,  because 
at  common  law  the  owner  was  at  his  peril  to  sustain  them, 
wherefore  they  ought  to  be  put  into  such  open  place  as  he 
could  resort  to  for  the  purpose :  and  if  they  were  placed  in  a 
private  pound,  the  distrainer  was  bound  to  supply  them  at 
his  peril  with  provision,  for  which  he  had  no  satisfaction,  and 
if  they  died  for  want  of  sustenance,  he  was  considered 
answerable  for  them  (p). 

Persons  impounding  animals  to  provide  food  and  -water.  —  By 
12  &  13  Vict.  c.  92,  s.  5,  "  every  person  who  shall  impound 
or  confine,  or  cause  to  be  impounded  or  confined,  in  any 
pound  or  receptacle  of  the  like  nature,  any  animal,  shall 
provide  and  supply,  during  such  confinement,  a  sufiicient 
quantity  of  fit  and  wholesome  food  and  water  to  such  ani- 
mal ;  and  every  such  person  who  shall  refuse  or  neglect  to 
provide  and  supply  such  animal  with  such  food  and  water 
as  aforesaid  shall  for  every  such  offence  forfeit  and  pay  a 
penalty  of  twenty  shillings."  The  penalty  imposed  by  this 
section  falls  not  upon  the  keeper  of  the  pound,  but  upon 
the  distrainer  (^). 

Power  to  any  one  to  supply  food  and  -water.  —  By  sect.  6, 
"  in  case  any  animal  shall  at  any  time  be  impounded  or  con- 
fined as  aforesaid,  and  shall  continue  confined  without  fit  and 
sufficient  food  and  water  for  more  than  twelve  successive 
hours,  it  shall  and  may  be  lawful  to  and  for  any  person 
whomsoever,  from  time  to  time,  and  as  often  as  shall  be 
necessary,  to  enter  into  and  upon  any  pound  or  other 
receptacle  of  the  like  nature  in  which  any  such 
[*474]  animal  *  shall  be  so  confined,  and  to  supply  such 
animal  with  fit  and  sufiicient  food  and  water  during 
so  lonsf  a  time   as  such  animal  shall  remain  and  continue 


(n)  Co.  Lit.  47  h;  HBlac.  Com.  l.T;  (p).  1    I.ist.  4;  Co.  Lit.  47  b;  15ul- 

l',!ilU-n,  142;  Smith  L.  &  T.  2:V.]  (2i)(l       len,  M:'.. 
cil.;,  (</)  Divrgan  v.  Davica,  L.  R.,  2  Q. 

(«)  Co.  Lit.  47  b;  BuUen,  143.  n.  1).  118;  4(5  L.  J.,  M.  C  122;  35  L. 

T.  810. 

740 


Ch.  XI.  S.  10.]  PROCEEDINGS   IN   DISTRESS.  *474 

confined  as  aforesaid,  without  being  liable  to  any  action  of 
trespass  or  any  other  proceeding  by  any  person  whomsoever 
for  or  by  reason  of  such  entry  for  the  purposes  aforesaid: 
and  the  reasonable  cost  of  such  food  and  water  shall  be  paid 
by  the  owner  of  such  animal,  before  such  animal  is  removed, 
to  the  person  who  shall  supply  the  same^  and  the  said  cost  may 
be  recovered  in  like  manner  as  herein  provided  for  the 
recovery  of  penalties  under  this  act,"  i.e.  by  summary  pro- 
ceedings before  a  justice. 

Expenses  of  food  and  -water — how  recovered. —  By  17  &  18 
Vict.  c.  60,  s.  1,  "every  person  who  since  the  passing  of  the 
said  act  of  the  twelfth  and  thirteenth  years  of  her  Majesty 
has  impounded  or  confined,  or  hereafter  shall  impound  or 
confine  as  in  the  said  act  mentioned,  any  animal,  and  has 
provided  and  supplied,  or  shall  hereafter  provide  and  supply 
such  animal  with  food  and  water  as  therein  mentioned,  shall 
and  may  and  he  is  hereby  authorized  to  recover  of  and  from 
the  owner  or  owners  of  such  animal  not  exceeding  double 
the  value  of  the  food  and  water  so  already  or  hereafter  to 
be  supplied  to  such  animal,  in  like  manner  as  is  by  the  said 
last-mentioned  act  provided  for  the  recovery  of  penalties 
under  the  same  act ;  and  every  person  who  has  supplied  or 
shall  hereafter  supply  such  food  and  water  shall  be  at  liberty, 
if  he  shall  so  think  fit,  instead  of  proceeding  for  the  recovery 
of  the  value  thereof  as  last  aforesaid,  after  the  expiration  of 
seven  clear  days  from  the  time  of  impounding  the  same,  to 
sell  any  such  animal  openly  at  any  public  market  (after  hav- 
ing given  three  days'  public  printed  notice  thereof)  for  the 
most  money  that  can  be  got  for  the  same,  and  to  apply  the 
produce  in  discharge  of  the  value  of  such  food  and  water  so 
supplied  as  aforesaid,  and  the  expense  of  and  attending  such 
sale,  rendering  the  overplus  (if  any)  to  the  owner  of  such 
animal."  Where  several  animals  are  distrained  for  rent,  one 
of  them  may  be  sold  for  the  expenses  of  all  —  and  this  may 
be  repeated  toties  quoties  (7-). 

Liability  of  distrainer.  —  A  distrainer  is  liable  for  any  injury 
which  animals  distrained  receive  in  consequence  of  the  wet, 

(r)  Leyton  r.  Hurry,  8  Q.  B.  811. 

741 


*475  DISTKESS   FOR   RENT.  [Cii.  XI.  S.  IC 

muddy  or  otherwise  unfit  state  of  the  pound  at  tlie  time  of 
impounding  (s).  The  distrainer  cannot  tie  or  bind  a  beast 
in  the  pound,  though  it  be  to  prevent  its  escape  (0  ;  for  any 
act  of  his  which  tends  to  the  injury  of  the  thing  distrained 
is  done  at  his  peril;  but  if  animals  distrained  die  in  the 
j)0und,  or  are  stolen,  without  any  fault  of  the  distrainer  or 
insufficiency  of  the  pound,  in  such  case  he  who  made  the 

distress  is  not  answerable,  but  has  an  action  of  tres- 
[*475]  pass,  if  the  distress  was  for  damage  feasant,  or  *may 

distrain  again  if  the  distress  was  for  rent  (zt).  The 
distrainer  cannot  work  or  use  the  thing  distrained,  whether 
it  be  in  pound  overt  or  covert:  because  the  distrainer  has 
only  the  custody  of  the  thing  as  a  pledge.  An  exception  to 
this  rule  exists  in  respect  to  milch  kine,  which  may  be  milked 
by  the  distrainer,  because  it  may  be  necessary  to  their  pres- 
ervation, and  consequently  of  benefit  to  the  owner  (x). 

Liability  of  pound-keeper.  —  A  pound-keeper  is  bound  to 
receive  everything  offered  to  his  custody,  and  is  not  answera- 
ble whether  the  thing  were  legally  impounded  or  not  (j/) :  an 
action  of  trespass,  therefore,  will  not  lie  against  him  merel}' 
for  receiving  a  distress,  though  the  original  taking  be  tortious ; 
for  the  pound  being  the  custody  of  the  law,  if  the  distress  be 
wrongfully  taken,  the  distrainer  is  answerable,  not  he.  When 
the  cattle  are  once  impounded  he  cannot  let  them  go  without 
a  replevin  or  the  consent  of  the  party  (s).  Neither  can  a 
pound-keeper  bring  an  action  if  tlie  pound  be  broken,  but  it 
must  be  brought  by  the  party  interested  («). 

Cattle  may  not  be  driven  more  than  3  miles,  &o.  —  By  1  &  2 
Ph.  &  M.  c.  12,  s.  1,  no  distress  of  cattle  is  to  be  driven  out 
of  the  hundred,  rape,  wapentake  or  latlie,  wliere  the  same  is 
taken,  except  it  be  to  n  'pound  overt  ivithln  the  same  shire,  nor 
al)ove  three  miles  from  the  place  where  the  same  is  taken, 

(s)  Wilder  I'.  SpecT,  8  A.  &  K.  547  ;  (x)  Cm.   Jac.   148;    Rao.    Ahr.   tit. 

l{i<,'nell  V.  Clarke,  G  II.  &  N.  485  ;  20       Distress  (I).  2). 
L.  J.,  Ex.  257.  (,/)  I'.adkiii  r.   Towell.   (^)wp.    17(1, 

(0  Oilb.  on  Distr.  G5;  Smith  L.  &       478;   Uraiidiiitr  r.  Kent.  1  T.  I{.  02. 
T.  2.34  (2n(l  ed.).  (z)  Uadkiii  v.   I'owell,  ('(.up.    47(i, 

(it)  Vns])vr  V.  Eddovv.s,  1  Salk.  248;       478. 
1  Ld.  liayin.  719;  Holt,  250.  (")  M.    IT't;     Fitz.    N.    B.    228;    2 

Ciiit.  I'l.  51'J  (7tli  ed.). 
742 


Cii.  XI.  S.  10.]  PllOCEEDIXGS   IN   DISTRESS.  *47G 

nor  impounded  in  several  places,  whereby  the  owner  may  be 
constrained  to  sue  several  replevins,  on  pain  of  forfeiting 
to  the  party  grieved  one  hundred  shillings  and  treble  dam- 
ages. 

Fee  on  impounding.  —  By  sect.  2,  no  person  shall  take  for 
keeping  in  pound  or  impounding  any  distress  above  four- 
pence  for  any  one  whole  distress ;  and  where  less  has  ])een 
used,  there  to  take  less,  on  pain  of  forfeiting  51.  to  the  party 
grieved,  besides  what  he  should  take  above  four-pence. 

Decisions.  —  On  this  statute  it  has  been  held  that  where 
lands  lying  in  two  adjoining  counties  were  let  under  one 
demise  at  one  entire  rent,  and  the  landlord  distrained  cattle 
in  both  counties  for  rent  in  arrear,  he  might  chase  them  all 
into  one  county ;  but  that  if  the  counties  had  not  adjoined 
it  would  have  been  otherwise  (6).  The  offence  created  by 
this  statute  for  impounding  a  distress  in  a  wrong  place  is  but 
a  single  offence,  and  satisfied  with  one  forfeiture,  though 
three  or  four  are  concerned  in  doing  the  act,  as  the  offence 
cannot  be  severed  so  as  to  make  each  offender  separately 
liable  to  the  penalty :  the  meaning  of  the  statute  being,  that 
the  penalty  shall  be  referred  to  the  offence,  not  to  the 
person  (c) :  thus  where  three  persons  distrained  *  a  [*476] 
flock  of  sheep,  and  severally  impounded  them  in 
three  several  pounds,  it  was  held,  that  .they  should  forfeit 
but  one  51.  and  one  treble  damages  (c?).  The  second  section 
does  not  extend  to  cases  where  the  goods  are  impounded  on 
the  premises  by  virtue  of  the  statute  next  mentioned  (e), 
which  is  the  statute  usually  resorted  to,  as  it  is  obviously  for 
the  advantage  of  both  landlord  and  tenant  that  the  distress 
should  remain  in  a  situation  equally  and  easily  accessible  to 
both  (/). 

Impounding  on  the  premises.  —  By  11  Geo.  2,  c.  19,  S.  10, 
"any  person  lawfully  taking  any  distress  for  any  kind  of 
rent  may  impound  or  otherwise  secure  the  distress  so  made, 

(b)  Walter  v.  Rumball,  1  Ld.  ((/)  Partridge  v.  Naylor,  Cro.  Eliz. 
Raym.  53;    1  Salk.  247;   Woodcroft       480;  Moor,  453. 

V.  Thompson,  3  Lev.  48 ;  Gimbart  v.  (e)  Child  v.  Chamberlain,  5   B.   & 

Pelah,  2  Stra.  1272 ;  Bullen,  145.  Adol.  1049. 

(c)  Rex  V.  Clarke,  Cowp.  612.  (/)  Smith  L.  &  T.  237. 

743 


*477  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  10. 

of  what  nature  or  kind  soever  it  may  be,  in  such  place,  or  on 
such  part  of  the  premises  chargeable  with  the  rent  as  shall  be 
most  jit  and  convenient  for  the  impounding  and  securing  such 
distress  ;  and  may  appraise,  sell  and  dispose  of  the  same  upon 
the  premises,  in  like  manner,  and  under  the  like  directions 
and  restraints  to  all  intents  and  purposes  as  any  person 
taking  a  distress  for  rent  may  now  do  off  the  premises,  by 
virtue  of  2  W.  &  M.  sess.  1,  c.  5,  or  4  Geo.  2,  c.  28 ;  and  any 
person  whatsoever  may  come  and  go  to  and  from  such  place 
or  part  of  the  said  premises,  where  any  distress  for  rent  shall 
be  impounded  and  secured  as  aforesaid,  in  order  to  view, 
appraise  and  buy,  and  also  in  order  to  carry  off  or  remove 
the  same  on  account  of  the  purchaser  thereof;  and  if  any 
pound-breach  or  rescous  shall  be  made  of  any  goods  and 
chattels,  or  stock  distrained  for  rent,  and  impounded  or 
otherwise  secured  by  virtue  of  this  act,  the  person  aggrieved 
thereby  shall  have  the  like  remedy  as  in  cases  of  pound- 
breach or  rescous  is  given  and  provided  by  the  said  statute." 
The  distrainer  ought  either  to  put  all  the  goods  distrained 
into  one  room,  and  keep  possession  of  that  only,  or  to  remove 
such  goods  out  of  the  house,  in  the  absence  of  any  consent 
to  the  contrary ;  but  very  slight  evidence  of  such  a  consent 
will  be  sufficient  (^).  Two  or  three  rooms  may  be  used,  if 
necessary,  as  may  appear  most  fit  and  convenient  (li\ 

An  open  field  is  a  sufficient  pound  for  cattle  (/).  The 
agent  of  a  landlord  went  into  a  field  where  the  tenant's  cattle 
were  feeding,  and  placing  his  hands  on  one  of  the  beasts, 
said  he  distrained  them  all,  counted  them,  and  took  a  note 
of  them,  whi(;li  he  left  witli  the  tenant,  and  then  went  away, 
doing  nothing  further  with  the  beasts ;  the  next  morning  he 
left  with  the  tenant  a  notice,  stating  he  had  distrained  tlie 
cattle,  and  had  impounded  them  in  the  place  or 
[*477]  *  places  therein  mentioned,  and  the  notice  afterwards 
stated  they  were  impounded  "  on  the  premises ; "  it 


(7)  Waslihorn   v.  Black,   11    East,  (/i)  Woods  d.  Durrant,  10  M.  &  W. 

40r) ;  Tcnnant  v.  Field,  8  K.  &  B.  ;i30;       149. 

Sinitl.  L.  &  T.  2;}8  (2nd  ed.).  (i)  Castleinan  v.  Ilick.s,  1   C  &  M. 

206, 

744 


Cii.  XI.  S.  10.]  niOCEEDINGS   IN  DISTRESS.  *477 

was  held,  that  this  impounding  was  sufficient  to  make  a  ten- 
der of  the  rent  and  costs  afterwards  too  late  (/r). 

Tenant  may  not  be  excluded,  —  It  has  been  ruled,  that  if 
necessary  to  secure  a  distress  in  a  cottage,  it  might  be  locked 
up  so  as  to  exclude  the  tenant  altogether  (Z).  But  it  would 
rather  seem  that  the  landlord  is  never  entitled  to  lock  up  the 
whole  of  the  demised  premises,  so  as  to  exclude  the  tenant 
therefrom,  except  with  his  express  consent ;  rather  than  do 
that  he  must  remove  the  goods  distrained  (m). 

Corn  may  not  be  removed.  —  Corn  loose  or  in  the  straw, 
hay,  &c.,  which  is  distrained  by  virtue  of  2  W.  &  M.  sess.  1, 
c.  5  (n),  cannot  be  removed  from  the  premises,  but  must 
be  impounded  where  found  (o).  And  growing  corn,  &c., 
distrained  under  11  Geo.  2,  c.  19,  s.  8,  must,  after  it  is  cut, 
be  placed  in  a  proper  place  on  the  premises,  and  cannot 
be  removed  except  in  default  of  there  being  such  proper 
place  (ja). 

(g)  Notice  of  Distress. 

Notice,  sale  and  appraisement.  —  The  distress,  being  con- 
sidered merely  as  a  pledge,  could  not  at  the  common  law  be 
sold  (g).  But  by  2  W.  &  M.  sess.  1,  c.  5,  s.  2,  "where  any 
goods  shall  be  distrained  for  rent  reserved  and  due  upon  any 
demise,  lease  or  contract  whatsoever,  and  the  tenant  or 
owner  of  the  goods  so  distrained  shall  not,  within  Jive  (r) 
da^s  next  after  such  distress  taken,  and  notice  thereof  (with 
the  cause  of  such  taking)  left  at  the  chief  mansion-house  or 
other  most  notorious  place  on  the  premises,  replevy  the 
same,  in  such  case,  the  person  distraining  shall  cause  the 
goods  so  distrained  to  be  appraised  by  two  appraisers,  and 
after  such  appraisement  (i-)  may  sell  the  same  for  the  best 
price  that  can  be  gotten  for  them,  towards  satisfaction  of  the 

(k)  Thomas  i;.  Harries,  1  M.  &  G.  (p)  Ante,  436. 

695.  ((?)  Ante,  412. 

(/)  Cox  V.  Painter,  7  C.  &  P.  767.  (r)  Or  fifteen  days,  if  tlie  Agricul- 

(/n)  Smith   v.   Ashforth,  29  L.  J.,  tural  Holdings  Act  applies.      See   s. 

Ex.  259  ;  Bullen,  147.  51  of  that  act,  and  post. 

(n)  Ante,  436.  (s)  If    the    Agricultural    Holdings 

(o)  Sect.  3;  Bullen,  141,  note  (2)  ;  Act  applies,  appraisement  is  nniuct  v- 

12  Q.  B.  674.  sary.     See  s.  50  nf  that  nn. 

745 


*478  DISTRESS   FOE   RENT.  [Ch.  XI.  S.  10. 

rent   and  charges   of   the    distress,  appraisement  and  sale ; 
leaving  the  overplus  (if  anj^)  for  the  owner's  use." 

Appraisers  need  not  be  sworn.  —  This  statute  also  required 
the  appraiser  to  be  sworn,  by  a  sheriff,  under-sheriff  or  con- 
stable, on  the  spot,  but  the  Parish  Constables  Act,  1872  (35 
&  36  Vict.  c.  92),  s.  13,  has  repealed  that  part  of  it.  The 
11  Geo.  2,  c.  19,  s.  9,  requires  that  the  tenants  have  notice 
of  the  j)lace  where  the  distress  is  lodged  when  it  is  re- 
moved. 
[*478]  *  What  is  a  sufficient  notice  of  distress.  —  The  notice 
of  distress  must  be  in  writing  Q},  and  its  object 
being  to  enable  the  distrainer  to  sell  under  2  W.  &  M.  sess. 
1,  c.  5,  s.  2,  it  ought  to  inform  the  tenant  or  the  person 
whose  effects  are  taken  what  goods  are  distrained,  and  the 
amount  of  rent  in  arrear  (?f).  A  notice  stating  that  the  dis- 
trainer had  distrained  the  goods,  chattels  and  things  men- 
tioned in  the  inventory  thereunder  written,  —  which  inven- 
tory was  "one  clock  and  weights,  &c.,  &c.,  atid  any  other 
r/oods  and  effects  that  may  he  found  in  and  about  the  said 
premises,  to  pay  the  said  rent  and  expenses  of  this  dis- 
tress," —  has  been  held  sufficient  in  a  case  where  it  appeared 
that  the  distress  was  in  fact  meant  to  include  all  the  goods 
on  the  premises  (.r).  But  where  a  notice  stated  a  distress  of 
the  several  goods  specified  in  the  schedule,  which,  after 
enumerating  certain  goods,  concluded  thus  —  "  and  all  other 
fjoods  that  may  he  required^  in  order  to  satisfy  the  above  rent, 
together  with  all  necessary  expenses ; "  it  was  held,  that  this 
notice  was  too  vague  and  uncertain  to  justify  the  sale  of  the 
goods  of  a  stranger  which  he  had  deposited  on  the  prem- 
ises (3/).  No  defect  in  the  notice,  nor  even  the  total  omission 
to  give  any  such  notice,  will  render  the  distress  itself  invalid 
or  illegal ;  the  notice  is  only  required  by  the  statute  to 
entitle  the  landlord  to  sell  under  the  distress  (z).  It  is  only 
irregular  to  sell  without  due  notice  (a).     Tlir    notice  need 

(0  Wilson  V.  Xiglitingalc,  8  Q.  B.  (//)  Kerby  v.  Ilanliiig,  snprn, 

1034  ;  sec  Form,  Appendix  D.,  No.  4.  (-)  Trent  v.  Hunt,  9  Fxch.  14. 

(m)  Kerhy  v.  Harding,  0  Exch.  234 ;  (n)  Lucas  v.  Tarleton,  3  H.  &  N. 

20  L.  .1.,  Ex.  103.  110;  Wilson  v.  Nightingale,  8  Q.  B. 

(r)  Wakeman  v.  Lindsey,  14  Q.  B.  1034;  Robinson  v.  Waddington,  13  Q. 

620.  B.  753. 

746 


Cii.  XI.  8.  10.]  PROCEEDINGS    IN   DISTRESS.  *479 

not  set  forth  at  what  time  the  rent  became  due  for  which 
the  distress  is  made,  nor  the  correct  amount  of  the  arrears 
really  due,  as  the  tenant  is  supposed  to  know  all  this  and 
must  tender  the  proper  amount  at  his  peril  (b~).  Any  defect 
or  mistake  in  the  notice  on  the  above  or  similar  points  is 
immaterial,  for  a  man  may  distrain  for  one  cause  and  avow 
or  justify  for  another  ((?).  Notice  to  the  owner  of  the  goods 
distrained  (uot  being  the  tenant)  is  sufficient  as  against  him, 
unless  a  replevin  has  been  sued  by  the  tenant  (c?).  In  all 
cases  personal  notice  is  sufficient,  and  indeed  preferable  to 
notice  left  at  the  mansion-house  or  other  notorious  place,  on 
account  of  the  difficulty  of  proof  (cZ). 

Time  of  removing  and  selling.  —  The  landlord  cannot  sell 
the  goods  distrained  until  after  the  expiration  of  the  five 
days  (or  fifteen  days,  if  the  Agricultural  Holdings  Act  ap- 
plies,) allowed  by  the  statute  for  the  tenant  to  replevy,  and 
those  days  must  be  calculated  exclusively  of  the  day  of 
taking  and  notice,  and  also  exclusively  of  the  day  of 
sale.  Therefore  where  a  distress  is  taken  *and,  [*479] 
notice  thereof  given  on  a  Saturday,  the  five  days 
expire  on  the  following  Thursday,  and  the  goods  cannot 
lawfully  be  sold  before  Friday  (e).  A  distress  taken  on 
Monday  or  Tuesday  cannot  lawfully  be  sold  until  the  follow- 
ing Monday  (/)•  But  no  action  will  lie  for  selling  too  soon 
unless  actual  damage  be  shown  (//).  The  landlord  should 
remove  the  goods  from  the  tenant's  premises  at  the  end  of 
the  five  days  allowed  the  tenant  to  replevy,  or  witliin  a  rea- 
sonable time  afterwards,  otherwise  he  may  be  deemed  a 
trespasser  for  keeping  them  there  (7i) :  thus  where  A.  en." 
tered  under  a  warrant  of  distress  for  rent  in  arrear,  and  con- 
tinued in  possession  of  the  goods  upon  the  premises  fifteen 

(6)  Ante,  416.  (e)  Robinson  r.  "Waddington,  13  Q. 

(c)  Crowther  v.  Ramsbottom,  7  T.  B.  753;  overruling  Wallace  v.  King, 

R.   G54;    Ethorton    v.    Popplewell,   1  1   H.    Blac.    13;   and    see    Harper    v. 

East,  139 ;  Wootley  v.  Gregory,  2  Y.  Tasvvell,  6  C.  &  P.  166. 

&  J.  536;  Trent  v.  Hunt,  9  Exob.  14  ;  (/)  Lucas  v.  Tarleton,  3  H.  &  N. 

22  L.  J.,  Ex.  318  ;  Phillips  >:  Whitsed,  116". 

2  E.  &  E.  804 ;  29  L.  J.,  Q.  B.  164.  (g)  Lucas  v.  Tarleton,  supra ;  Rodg- 

{d)  Walter     v.     Rumball,     1     Ld.  ers  v.  Parker,  18  C.  B.  112. 

Raym.  53 ;  1  Salk.  247.  (/))  Griffin  r.  Scott,  2  Stra.  716 ;  2 

Ld.  Raym.  1424. 

747 


*480  DISTRESS   FOR    RENT.  [Cii.  XI.  S.  10. 

days,  during  tlie  last  four  of  which  he  was  removing  the 
goods,  which  were  afterwards  sold  under  the  distress  ;  it  was 
held,  that  he  was  liable  to  an  action  of  trespass  for  continu- 
ing on  the  premises,  and  disturbing  the  plaintiff  in  the  occu- 
pation of  his  house,  after  the  time  allowed  by  law  (/) ;  but  a 
reasonable  time  after  the  expiration  of  the  five  days  from 
the  time  of  the  distress  is  allowed  by  law  to  the  landlord  to 
remain  on  the  premises  for  appraising  and  selling  the  goods 
distrained  (/:).  It  is  usual  for  the  tenant  to  give  a  conseiit 
for  the  landlord  to  remain  beyond  the  five  days,  as  it  is  for 
the  tenant's  advantage  that  the  goods  be  not  sold,  or,  at  all 
events,  not  sacrificed  by  hurrying  on  the  sale ;  if  such  con- 
sent be  given,  it  is  prudent,  although  not  absolutely  neces- 
sary, to  have  it  in  writing  (Z).  If  a  landlord  has  distrained 
for  rent,  but  by  an  arrangement  between  him  and  the  tenant 
does  not  sell  immediately  after  the  five  days,  that  is  no  proof 
per  se  of  collusion  (w)  ;  and  the  request  of  the  tenant  will 
justify  the  landlord  in  detaining  the  goods  of  a  lodger  upon 
the  premises  beyond  the  proper  time  of  selling,  if  he  did  not 
know  which  were  the  goods  of  the  lodger,  and  which  were 
those  of  the  tenant  (w).  Standing  corn  and  growing  crops, 
seized  as  a  distress  for  rent,  cannot  be  sold  before  they  are 
ripe,  for  the  tenant  may  tender  the  rent  before  they  are 
ripe  (o).  But  no  action  can  be  maintained  for  selling  them 
prematurely,  if  the  jury  find  that  the  tenant  thereby  sus- 
tained no  damage  (p). 

Hi)  Appraisement  and  Sale. 

Who  may   act   as  appraisers.  —  Before   the   distress 
[*480]  can  be  sold,  it  must,  unless  the  Agricultural  *  Hold- 
ings Act  a[)plies  (^),  be  appraised  by  two  appraisers  (r), 
who  must  be  reasonably  competent,  but  need  not  be  profes- 

(/)  Winterbourne    v.    Morgan,    11       Proudlove  v.  Twemlow,  1  Cr.  &  M. 
East,  P>'.)5;  2  Camp.  117,  n. ;   Ether-       ;}2G. 
ton  V.  Popplewell,  1  East,  l.']0.  (/>)  Lucas  v.  Tarloton,  ;'.  H.  &  N. 

(/.)  Pitt  V.  Rliew,  4  B.  &  A.  208.  116  ;  Rndgers  v.  Parker,  18  C.  li.  112. 

(/)  See  Form,  Appendix  D.,  No.  7.  (7)  See  Sect.  5,  ante. 

(m)  Harrison  r.  Barry,  7  I'ricp,  (iOO.  (r)  2  W.   &  M.  sess.  1,  c.  5,  s.  2; 

(h)  Fisher  v.  Alijar,  2  C.  &   V.  .".74.       nnir,  477;  Allen  v.  Flicker,  10  A.  & 

(0)  Owen  V.  Leigh,  3  13.  &  A.  470;       E.  <i40;  Bishop  v.  Bryant,  0  C.  &  P. 

484. 
74S 


Ch.  XI.  S.  10.] 


PROCEEDINGS    IN   DISTRESS. 


*480 


sional  appraisers  Qs} :  it  must  not  be  appraised  by  the  party 
making  it  (^),  for  he  is  interested  in  the  business.  A  land- 
lord, who  was  a  broker,  having  distrained  goods  for  rent, 
was  sworn  one  of  the  appraisers,  and  together  with  another 
broker  valued  them  to  the  plaintiff,  who  became  the  pur- 
chaser according  to  such  valuation ;  it  was  held,  that  the 
sale  was  irregular  (w).  So  the  landlord  cannot  sell  the 
goods  to  himself  (x).  It  has  been  held,  that  if  the  tenant, 
to  save  expense,  requests  that  appraisers  may  not  be  called 
in,  and  in  consequence  the  broker  who  made  the  seizure 
values  the  goods,  the  tenant  cannot  in  an  action  complain 
of  that  which  was  done  as  an  irregularity  (^). 

The  appraisers  proceed  to  appraise  the  goods,  and  usually 
write  their  appraisement  upon  the  inventory  (2). 

Stamp  on  appraisement.  —  By  the  Stamp  Act,  1870  (33  & 
34  Vict.  c.  97),  s.  08,  and  Sched.  tit.  "Appraisement  or 
Valuation,"  the  following  stamp  duties  are  made  payable  on 
appraisements  and  valuations  made  on  and  after  1st  January, 
1871:  — 


Where  the  amount  of  the  appraisement  or     £     s.     d. 

valuation  does  not  exceed  51. 
Exceeds  5^.  and  does  not  exceed  lOZ. 


10?. 

20/. 

SOL 

40Z. 

501. 
1001. 
2001. 
500Z. 


20Z. 

30Z. 

40Z. 

50/. 
100?. 
200/. 
500/. 


0 

0 

3 

0 

0 

6 

0 

1 

0 

0 

1 

6 

0 

2 

0 

0 

2 

6 

0 

5 

0 

0 

10 

0 

0 

15 

0 

1 

0 

0 

Where  goods  are  distrained,  and  at  the  end  of  the  five 
,^ys  appraised  but  not  sold,  the  act  of  appraisement  does 


(s)  Roden  v.  Eyton,  6  C.  B.  427 ; 
Clarke  v.  Holford,  2  C.  &  K.  540; 
Child  V.  Chamberlain,  6  C.  &  P.  213. 
They  need  not  be  sworn  ;  ante,  477. 

(t)  Westwood  V.  Cowne,  1  Stark.  R. 
172. 


(u)  Lyon  v.  Weldon,  2  Bing.  3.34. 
(x)  King  V.  England,  4  B.  &  S.  782; 
33  L.  J.,  Q.  B.  145. 

(i/)  Bishop  V.  Bryant,  6  C.  &  P.  484. 
(z)  See  Form,  Appendix  D.,  No.  3. 


749 


*481  DISTRESS    FOR    RENT.  [Ch.  XI.  S.  10. 

not  take  away  the  tenant's  right  to  replevy  them  (rt).  Until 
they  are  duly  sold,  the  property  in  them  remains  vested  in 
the  tenant  or  other  owner  (^'). 

A  bailiff  who  seizes  goods  under  a  distress  warrant,  if  his 
authority  to  sell  on  behalf  of  the  landlord  is  afterwards 
withdrawn,  has  no  right  to  go  on  and  sell  for  his  ex- 
penses (c). 
[*481J  *  Procedure  under  Agricultural  Holdings  Act.  —  If 
the  Agricultural  Holdings  Act  applies  ((?),  appraise- 
ment is  unnecessary  by  s.  50  of  that  act,  the  effect  of  which 
is  that  the  landlord,  if  he  has  an  appraisement,  cannot  throw 
the  expenses  of  it  upon  the  tenant ;  and  by  the  same  section, 
for  the  purposes  of  sale  the  goods  "  shall,"  at  the  request  in 
writing  of  the  tenant  or  owner,  be  removed  '^  at  the  expense 
of  the  party  requesting  removal  to  a  public  auction  room,  or  to 
some  other  fit  and  proper  place  specified  in  such  request,  and 
be  the  resold,"  not  necessarily,  it  will  be  observed,  by  auction. 
Mode  of  selling.  —  Before  an}^  sale  takes  place,  the  county 
court  re2"istrar's  office  should  be  searched  to  see  if  the  p-oods 
have  been  replevied;  if  that  is  not  the  case,  and  the  rent  and 
charges  remain  unpaid  at  the  end  of  the  five  days  allowed  by 
law,  the  goods  should  be  sold  for  the  best  price  which  can  be 
got  for  them.  If  the  distress  is  for  less  than  20/.,  a  person 
selling  the  goods  l)y  auction  need  not  have  an  auctioneer's 
licence  (e).  It  seems  that  there  is  no  order  required  by  law 
to  be  observed  on  the  sale  of  goods  distrained,  —  as  that 
beasts  of  the  plough  should  be  postponed  to  other  goods  (,/")• 
Landlord  may  not  buy.  —  The  landlord  cannot  sell  the 
goods  to  himself  or  take  them  at  the  appraised  price  (//).  It 
is  not  unusual  for  the  appraisers  to  buy  them  at  their  own 
valuation.  A  distress  sold  at  the  appraised  value  was  taken, 
when  appraisers  were  sworn,  to  have  been  sold  at  the  best 
price,  since  tlie  law  relied  upon  the  appraisers  having  been 
sworn  (A)  ;  but  it  was  held,  that  U[)on  a  count  for  not  selling 

(a)  Jacob  r.  Kiiitr,  5  Taunt.  l.")1.  (r)  8  &  !)  Vict.  c.  If),  s.  5. 

(/<)  Mooro  V.  Pyrkc,  11  East,  r)2,  54  ;  ( /)  .Tenner  v.  Yolland,  (5  Price,  5; 

King  V.  England,  stiprn,  note  (x).  2  Chit.  Tl.  107. 

(r)  Harding  v.  IFail,  14  W.  R.  040;  ('/)  King  i*.  England,  .'-w^w-a,  note  ('/). 

14  L.  T.,  N.  R.  410.  ()()  Waiter  r.  RumbalJ,  1  Ld.  R;iyni. 

id)  Sect.  5,  ante,  485.  53;   1  Salk.  247  :  Buiien,  100. 

750 


Cii.  XI.  S.  10]  PROCEEDINGS    IN   DISTRESS.  *482 

goods  distrained  at  the  best  prices,  the  plaintiff  might  go 
into  evidence  to  show  that  the  goods  were  allowed  to  stand 
in  the  rain,  and  that  they  were  improperly  allowed  (*). 
Where  a  tenant  is  under  a  covenant  not  to  carry  hay  and 
straw  off  tho  premises,  a  distraining  landlord  is  not  entitled 
to  sell  it  too  cheap,  on  the  condition  that  the  purchaser  shall 
consume  it  on  the  premises  (/c).  If  goods  on  the  tenant's 
lands  be  sold  under  a  distress  with  a  condition,  to  which  the 
tenant  is  a  party,  that  they  may  remain  on  the  land  up  to  a 
certain  day,  and  that  the  buyer  may  enter  and  take  the 
goods,  the  tenant  cannot  revoke  this  licence  to  enter  on  the 
land  (?)•  But  such  a  licence  is  not  implied  by  law,  though 
the  goods  may  have  remained  on  the  land  with  the  tenant's 
assent  (wi).  The  whole  produce  of  the  sale  may,  if  neces- 
sary, be  applied  in  or  towards  satisfaction  of  the  rent  and 
expenses  of  the  distress ;  but  if  the  produce  be  more  than 
sufficient  for  that  purpose,  the  residue  should  be  left 
in  the  hands  of  the.  sheriff,  *  under-sheriff,  or  con-  [*482] 
stable  —  usually  the  latter  —  for  the  use  of  the  owner 
of  the  goods  distrained  (n').  And  if  the  goods  have  been 
removed  for  sale,  the  surplus  thereof  remaining  unsold  (if 
any)  should  be  returned  to  the  premises  from  which  they 
were  taken  (o). 

(i)  Costs  of  Distresses. 

Fixed  limit  -where  distress  for  20?.  or  less.  —  By  57  Geo.  3, 
c.  93,  for  regulating  the  costs  of  distresses  levied  for  pay- 
ment of  small  rents,  after  reciting  that  divers  persons  acting 
as  brokers,  and  distraining  on  the  goods  and  chattels  of 
others,  or  employed  in  the  course  of  such  distresses,  had  of 
late  made  excessive  charges,  to  the  great  oppression  of  poor 

(0  Poyntcr  v.  Buckley,  5  C.  &  P.  (/)  Wood  v.  Manlcy,   11   A.    &   E. 

512.  34;   Wood  v.  Leadbitter,  13  M.  &  W. 

(A-)  llidgway    v.   Ld.     Stafford,     6  838. 

Kxch.     404  ;      overruling     Abbey    v.  (m)  Williams  c.  ^lorris,  8  M.  &  W. 

Petch,  8  M.  &  W.  419 ;  and  followed  488. 

in  Hawkins  v.  Walrond,  45  L.  J.,  C.  (n)  Post,  485. 

P.  772;  see   also  Frusher  v.  Lee,   10  (o)  Evans  r.  Wright,  2  H.  &  N.  527; 

M.  &  W.  709 ;  Roden  v.   Eyton,  C.  C.  27  L.  J.,  Ex.  50. 
B.  427 ;  Smith  L.  &  T.  210  (2nd  ed.). 

751 


*483  DISTRESS   FOE,   KENT.  [On.  XI.  S.  10. 

tenants  and  others,  and  that  it  was  expedient  to  check  such 
practices,  it  was  enacted,  sect.  1,  "  that  no  person  making 
any  distress  for  rent,  where  the  sum  demanded  and  due  shall 
not  exceed  20?.  for  and  in  respect  of  such  rent,  nor  any  per- 
son whatsoever  employed  in  any  manner  in  making  such  dis- 
tress, or  doing  any  act  whatsoever  in  the  course  of  such 
distress,  or  for  carrying  the  same  into  effect,  shall  have,  take 
or  receive  out  of  the  product  of  the  goods  or  chattels  dis- 
trained upon  and  sold,  or  from  the  tenant  distrained  on,  or 
from  the  landlord,  or  from  any  other  person  whatsoever,  any 
other  or  more  costs  and  charges  for  and  in  respect  of  such 
distress,  or  any  matter  or  thing  done  therein,  than  such 
as  are  fixed  and  set  forth  in  the  schedule "  annexed  and 
appropriated  to  each  act  which  shall  have  been  done  in  the 
course  of  such  distress ;  and  no  person  or  persons  whatsoever 
shall  make  any  charge  for  any  act,  matter  or  thing  mentioned 
in  the  schedule,  unless  such  act  shall  have  been  really  done. 
Party  aggrieved  by  extortion  may  apply  to  justice  of  the 
peace.  —  By  sect.  2,  "if  any  person  shall  in  any  manner  levy, 
take  or  receive  from  any  person  whatsoever,  or  retain  or 
take  from  the  product  of  any  goods  sold  for  the  payment  of 
such  rent,  any  other  (^)  or  greater  costs  and  charges  than 
are  mentioned  and  set  down  in  the  schedule,  or  make  any 
charge  whatsoever  for  any  act,  matter  or  thing  mentioned  in 
the  schedule,  and  not  really  done,  the  party  aggrieved  by 
such  practices  may  apply  to  any  one  justice  of  the  peace 
for  the  county,  city  or  town,  and  acting  for  the  division 
where  such  distress  shall  have  been  made,  or  in  any  manner 
proceeded  in,  for  redress ;  whereupon  such  justice  shall 
summon  the  person  complained  of  to  appear  before  him,  and 
shall  examine  into  tlie  matter  of  such  complaint,  and  hear 
the  defence  of  tlu;  person  complained  of ;  and  if  the  fact 
shall  appear  to  such  justice,  he  sliall  order  and  adjudge  treble 
the  amount  of  the  monies  so  unlawfully  taken  to  be  paid,  by 

the  person  so  having  acted,  to  the  party  who  shall 
[*483]  have  made  complaint  *  thereof,  together   with    full 

costs;   and,  in  case    of   non-payment,  shall  issue  his 

(/>)  Nott  V.   Bound.  L.  U.,   I  Q.  B.  406. 

752 


Cn.  XI.  S.  10.]  PROCEEDINGS    IN   DISTRESS.  *483 

warrant  to  levy  the  same  by  distress  and  sale  of  the  goods 
and  chattels  of  the  party  ordered  to  pay,  rendering  the  over- 
plus (if  any)  to  the  owner ;  and  in  case  no  sufficient  distress 
can  be  had,  he  shall  commit  the  party  to  prison,  there  to 
remain  until  such  order  or  judgment  be  satisfied." 

Landlord  liable  only  in  case  of  personal  levy.  —  Sect.  4  pro- 
vides, that  nothing  contained  in  the  act  ''shall  empower  such 
justice  to  make  any  order  or  judgment  against  the  landlord 
for  whose  benefit  any  such  distress  shall  have  been  made, 
unless  such  landlord  shall  have  personally  levied  such  dis- 
tress; and  that  no  person  who  shall  be  aggrieved  shall  be 
debarred  from  any  legal  or  other  suit  or  remedy  which  he 
might  have  had  before  the  passing  of  the  act,  excepting  so 
far  as  such  complaint  shall  have  been  determined  by  the 
order  and  judgment  of  the  justice,  and  which  may  be  given 
in  evidence  under  the  plea  of  the  general  issue  in  all  cases 
where  the  matter  of  such  complaint  shall  be  made  the  sub- 
ject of  any  action." 

Schedule  of  expenses  for  distresses  not  exceeding  20/.  — 
The  schedule  of  expenses  referred  to  in  the  above  act  is  as 
follows :  — 


£ 

s. 

d. 

0 

3 

0 

0 

2 

6 

Levying  distress  ..... 

Man  in  possession,  per  day 

Appraisement,  whether  by  one  broker  or 
more,  6d.  in  the  pound  on  the  value 
of  the  goods. 

Stamp,  the  lawful  amount  thereof. 

All  expenses    of   advertisements,  if   any 

such 0  10     0 

Catalogues,  sale  and  commission,  and  de- 
livery of  goods.  Is.  in  the  pound  on  the 
net  produce  of  the  sale. 

The  statute  does  not  apply  to  a  case  of  distress  taken  for 
more  than  20/.,  though  made  upon  goods  which  are  appraised 
at  and  sold  for  less  than  20/.  ((/). 

Copy  of  broker's  charges  to  be  delivered,  &c.  —  By  sect.  6  of 

(q)  Child  I'.  Chamberlain,  5  B.  &  A.  1049 ;  6  C.  &  P.  213. 

753 


*484  DISTRESS    FOR   RENT.  [Ch.  XI.  S.  10. 

the  same  statute  "  every  broker  or  other  person  who  shall 
make  and  levy  any  distress  whatsoever,  shall  give  a  copy  of 
his  charges,  and  of  all  the  costs  and  charges  of  any  distress 
whatsoever,  signed  by  him.  to  the  person  or  persons  on 
whose  goods  and  chattels  any  distress  shall  be  levied, 
althouo^h  the  amount  of  the  rent  demanded  shall  exceed  the 
sum  of  twenty  pounds."  This  section,  which,  it  will  have 
been  seen,  is  of  general  application,  does  not  apply  where  the 
goods  have  not  been  sold  (r),  and  where  it  does  apply,  the 
landlord,  not  personally  interfering  in  the  distress,  is  not 
liable  for  the  omission  of  the  broker  to  give  a  copy  of  his 

charges  (s). 
[*484]  *  Costs  of  distresses  for  more  than  20/.  —  Where  the 
sum  distrained  for  exceeds  20?.,  the  above  act  does 
not  apply,  and  unless  the  Agricultural  Holdings  Act  applies, 
the  only  rule  is  that  the  charges  must  be  reasonable  (0-  It 
is  to  be  regretted  that  some  reasonable  scale  of  charges  in 
such  cases  has  not  been  sanctioned  by  the  legislature,  to 
prevent  extortion,  and  because  tenants  ought  to  know  accu- 
rately how  much  to  tender  (with  the  arrears  of  rent)  for  the 
expenses  of  the  distress.  The  general  practice  appears  to 
be,  to  charge  Is.  in  the  pound  for  the  levy,  and  2s.  6d.  per 
day  for  the  man  in  possession,  if  the  tenant  keep  him,  and 
38.  6d.  per  day  if  he  keep  himself  (?t),  besides  the  usual 
charges  for  appraisement,  advertisements,  catalogues,  &c. 
The  1  &  2  Ph.  &  M.  c.  12,  s.  2  (.r),  allowing  only  4rf.  for 
impounding  any  one  whole  distress,  does  not  extend  to  cases 
where  the  goods  are  impounded  on  the  premises,  pursuant 
to  11  Geo.  2,  c.  19,  s.  10.  A  bailiff  has  no  right  to  go  on 
with  the  distress,  and  sell  for  his  expenses,  after  his  author- 
ity has  been  withdrawn  by  the  landlord  (?/). 

Costs  of  distresses  for  more  than  20/.  on  agricultural   holding. 

(r)  Hills  V.  Street,  5  Bing.  30.  mandetl   and   due   for  such  rates  or 

(s)  Hart  V.  Leach,  1  M.  &  W.  GOO.  taxes,  &c.,  does  not  exceed  20/. 

By   7    &  8   Geo,  4,  c.  17,  all    the  (/)  Lyon  »-.  Tomkies,  1  M.  &  W. 

clauses,   &c.,  in   the   above   act    (T)?  003. 

Geo.  3,  c.  93)  contained  are  extended  (h)  Bullen,  104,  105. 

to  any  distress  for  any  rates  or  taxes,  (.r)  Ante,  441. 

&c.,  in  all   cases  where  the  sum  de-  (i/)  ilardinfjc  i?-  Hall,  14  W.  R.  640 ; 

14  L.  T.,  N.  S.  410. 

754 


Ch.  XI.  S.  10.]  PROCEEDINGS   IN   DISTRESS.  *485 

—  If  the  Agricultural  Holdings  Act  apjDlies  (2),  a  special 
scale  is  provided  by  s.  49  and  sched.  2  of  that  act,  which 
scale  may  not  be  exceeded,  but  is  applicable  only  to  dis- 
tresses for  more  than  20^.,  distresses  for  less  than  20?.  being 
still  left  to  be  regulated  by  57  Geo.  3,  c.  93.  The  scale  is  as 
follows :  — 

Levying  distress.  —  Three  per  centum  on  any  sum  ex- 
ceeding 20L  and  not  exceeding  50Z.  Two  and  a  half  per 
centum  on  any  sum  exceeding  501. 

To  bailiff  for  levy,  11.  Is. 

To  man  in  possession,  if  boarded,  Ss.  6d.  per  day ;  if  not 
boarded,  5s.  per  day. 

For  advertisements,  the  sum  actually  paid. 

To  auctioneer.  —  For  sale,  five  pounds  per  centum  on  the 
sum  realized  not  exceeding  10.01.,  and  four  per  centum  on 
any  additional  sum  ]-ealized  not  exceeding  100/.,  and  on  any 
sum  exceeding  200?.  three  per  centum.  A  fraction  of  1?.  to 
be  in  all  cases  considered  IZ. 

Reasonable  costs  and  charges  where  distress  is  withdrawn, 
or  where  no  sale  takes  place,  and  for  negotiations  between 
landlord  and  tenant  respecting  the  distress ;  such  costs  and 
charges,  in  case  the  parties  differ,  to  be  taxed  by  the  regis- 
trar of  the  county  court  of  the  district  in  which  the  distress 
is  made  («). 

Negotiations.  —  At  common  law  the  landlord  has  no  right 
to  charge  the  tenant  with  the  costs  of  any  such  "  negotia- 
tions respecting  distress,"  but  these  words  in  the  schedule 
seem  impliedly  to  confer  such  a  right. 

*  (j)  Surplus  Proceeds  and  Unsold  G-oods.      [*485] 

Overplus  to  be  paid  to  tenant.  —  By  2  W.  &  M.  sess.  1,  C.  5, 
s.  2,  landlords  are  authorized,  after  giving  five  days'  notice 
of  the  distress  (?*),  to  cause  the  goods  and  chattels  distrained 
to  be  appraised  and  sold  (c),  ''  towards  satisfaction  of  the 

(z)  See  sect.  5,  ante.  Committee  of  the  House  of  Commons 

(a)  This  scale  is  almost  identical       on  the   law  of  distress,  which  made 

with  that  proposed  by  IMr.  Waugh,       its  report  in  1882. 

M.  P.  for  Cockermouth,  a  solicitor  of  (/))  Ante,  477  (f). 

forty  years'  experience,  to  the  Select  (c)  Ante,  479  (g). 

755 


*485  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  11. 

rent  for  which  the  said  goods  and  chattels  shall  be  dis- 
trained, and  of  the  charges  of  such  distress,  appraisement  and 
sale,  leaving  the  overplus  (if  any^  in  the  hands  of  the  said 
sheriff,  under-sheriff  or  constable,  for  the  owner's  use."  If 
the  overplus  be  not  so  left,  and  the  tenant  or  owner  of  the 
goods  thereby  sustains  actual  damage  (but  not  otherwise), 
a  special  action  on  the  case  is  maintainable  (<?),  but  not  an 
action  for  money  had  and  received,  to  recover  the  amount  of 
such  overplus  (f).  The  "overplus"  means  what  remains 
after  payment  of  the  rent,  and  the  reasonable  charges  of  the 
distress,  which  may  be  questioned  in  such  special  action  (/). 
Whether  the  amount  deducted  for  rent  can  be  questioned  in 
such  action,  is  not  clear.  Although  the  tenant  or  owner  of 
the  goods  has  received  the  balance  from  the  broker,  it  is  a 
question  for  the  jury  whethe-r  it  was  accepted  in  full  satis- 
faction :  and  if  not,  then  whether  it  was  sufficient  to  satisfy 
the  real  balance  (^). 

No  action  for  rent  till  sale.  —  And  althouph  the  distress  be 

o 

insufficient,  no  action  can  be  maintained  for  the  rent  until 
a  sale  has  been  had  (A),  after  which  the  landlord  may  sue  for 
the  balance  (i).  Where  goods  distrained  for  rent  in  arrear 
have  been  removed  to  a  convenient  place  for  sale,  and  suffi- 
cient sold  to  satisfy  the  distress,  including  the  expenses,  the 
proper  course  is  for  the  broker  to  leave  the  surplus  money 
with  the  sheriff,  under-sheriff  or  constable  (generally  the 
constable),  and  return  the  surplus  goods  to  the  premises 
from  whence  he  took  them  (k'). 


Sect.  11.  —  Second  Distress. 

Second    distress   in    case    of    insufficiency    on    first.  —  By    17 

Car.  2,  c.  7,  s.  4,  "  in  all  cases  wlicrc  the  value  of  the  cattle 

(d)  Lyon  v.  Tonikios,  1   M.  &  W.       603;  Knight  v.  Egerton,  7  Ex<-'h.  407 
603.  (Gth  issue,  and  verdict  thereon). 

(e)  Yates  v.  Eastwood,  6  Exch.  805  ;  (r/)  Lyon  v.  Toinkies,  siijirn. 

20  L.  J.,  Ex.  303 ;  Evans  »;.  Wright,  2  ("/O  Lehain   /•.    Philpott,   L.  R.,   10 

H.  &  N.  527  ;  27  L.  J.,  Ex.  60 ;  2  Chit.       Lx.  242 ;  44  L.  J.,  Ex.  225. 
PI.  544  (7tli  ed.).  (/)  IMiilpott  r.  Loliain,  35  L.  T.  856. 

(/)  Lyon  V.  TomkicB,  1  M.  &  \V.  (/>)  Kvans   v.    Wriglit,  2   U.  &   N. 

627;  27  L.  .1.,  Kx.  50. 

766 


Cu.  XI.  S.  11.]  SECOND   DISTRESS.  *486 

distrained  shall  not  be  found  to  be  of  the  full  value  of  the 
arrears  distrained  for,  the  party  to  whom  such  arrears  are 
due,  his  executors  or  administrators,  may  from  time  to 
time  distrain  again  for  the  residue  of  the  said  arrears." 
This  enactment,  which  appears  intended  to  provide  for  the 
cases  where  a  tenant  after  an  insufficient  distress 
*has  subsequently  brought  fresh  goods  upon  the  [*486] 
premises,  is  wholly  repealed  by  the  Statute  Law  Re- 
vision and  Civil  Procedure  Act,  1881,  44  &  45  Vict.  c.  59,  but 
the  object  of  that  act  was  to  expressly  repeal  enactments 
impliedly  repealed  already,  and  17  Car.  2,  c.  7,  s.  4,  does  not 
appear  to  have  been  impliedly  repealed.  Perhaps,  too,  the 
enactment  is  saved  from  repeal  by  s.  4  (b)  of  the  Act  of 
1881,  which  provides  that  the  general  repeal  shall  not  affect 
any  right  or  privilege  acquired  by  any  enactment  repealed 
by  the  Act  of  1881. ' 

Illegality  of  second  distress  for  same  rent  in  case  of  suffi- 
ciency on  first.  —  However  this  may  be,  a  second  distress  for 
the  same  rent  cannot  be  justified  where  there  is  enough 
which  might  have  been  taken  upon  the  first  distress,  if  the 
(hstrainer  had  then  thought  proper ;  for  it  was  his  folly  that 
he  did  not  take  sufficient  at  first  (Z)  ;  and  a  man  who  has  an 
entire  duty  (as  rent,  for  example)  may  not  split  the  entire 
sum,  and  distrain  for  one  part  of  it  at  one  time,  and  for  the 
other  part  of  it  at  another  time,  and  so  toties  quoties  for 
several  times ;  for  that  is  great  oppression  (m).  It  is  not 
illegal,  however,  in  cases  where  many  gales  of  rent  are  due, 
to  distrain  firstly  for  gales  firstly  due,  and  secondly  for  gales 
subsequently  due,  although  the  distress  firstly  made  was 
made  at  a  date  when  the  gales  secondly  distrained  for  might , 
have  been  distrained  for  by  the  first  distress.  That  a  second 
distress  to  be  illegal  must  be  for  the  same  rent  is  recognized 
by  all  the  authorities  (w). 

(/)  Com.    Dig.    Distress    (A.    1) ;  (n)  And  see  per  Brown,  J.,  Moore, 

Bagge,  app.  Mawby,  resp.,  8  Exch.  7,  pi.  26,  cited  in  Dawson  v.  Cropp,  1 

641  ;'Smith  L.  &  T.  191,  192  (2nd  ed.).  C.  B.  961.     The  appropriation  of  the 

(m)  Gambrell  v.  Earl  of  Falmouth,  first  distress  to  the  first  rent  will  ap- 

4  A.  &  E.  73;  Lear  v.  Caldecott,  4  Q.  pear  from  the  distress  warrant  and 

B.  123;   Owen  ;•.  Wynne,  4  E.  &  B.  notice  of  distress. 
679;  Smith  L.  &  T.  192  (2nd  ed.). 

757 


*487  DISTRESS    FOR   RENT.  [Ch.  XI.  S.  11. 

An  action  will  lie  against  a  landlord  for  the  goods  taken 
on  a  second  distress,  where  he  might  have  taken  sufficient 
on  the  first,  or  where  he  has  voluntarily  abandoned  it  (o). 
Where  a  landlord,  having  distrained  a  tenant  who  had  com- 
mitted an  act  of  bankruptcy,  withdi-ew  the  distress  in  conse- 
quence of  a  creditor  of  the  tenant  stating  that  he  was  pro- 
ceeding in  bankruptcy  against  the  tenant,  and  warning  the 
landlord  not  to  sell,  it  was  held,  that  such  notice  or  warning 
ought  not  to  have  been  regarded,  and  that  a  second  distress 
was  illegal  (p).  If  a  man,  however,  seize  for  the  whole 
sum  that  is  due  to  him,  and  only  mistake  the  value  of  the 
goods  seized,  which  may  be  of  uncertain  or  imaginary  value, 
as  pictures,  jewels,  race-horses,  &c.,  there  is  no  reason  why 
he  should  not  afterwards  complete  his  execution  by  making 
a  further  seizure  (5').  So  if  he  withdraw  the  distress  at  the 
request  of  the  tenant  and  for  his  accommodation  (?•),  or  is 
induced  to  do  so  by  a  false  statement  made  by  the 
[*487]  tenant  (s).  So  if  he  be  forcibly  prevented  *  by  the 
tenant  from  selling  the  goods  distrained,  or  from 
delivering  them  to  the  purchaser,  whereby  the  distress  is 
defeated  (^).  But  the  re-entry  in  such  cases  does  not 
amount  to  a  second  distress ;  it  is  merely  a  continuance  of 
the  original  taking,  and  it  should  be  confined  to  the  goods 
previously  taken  and  not  extend  to  any  others  (it). 

Second  distress  in  case  of  replevin.  —  If  a  plaintiff  in  re- 
plevin be  nonsuited,  the  defendant  may  again  distrain  the  same 
goods  for  rent  subsequently  accrued,  previously  to  execut- 
ing his  retorno  habendo,  without  waiving  his  action  against 
the  sureties  on  the  bond  (a:).  Where  to  a  cognizance  for  rent 
in  arrear  there  was  a  plea  in  bar,  that  the  defendant,  on  a 
former  occasion,  made  a  distress  for  the  same  rent,  and  took 


(0)  Smith  V.  Goodwin,  4  \i.  &  Adol.  {r)  Sec   Koriii   of  Kfcjiiost,  Appen- 

413;  Dawson  v.  Cropp,  1  ('.  H.  OHl  ;  <li.\  I).,  No.  0. 

3  T>.  &  L.  225;  Lear  v.  Caldecott,  4  (.s)  Woollaston.app.,  Stafford,  rcsp., 

Q.  B.  12.'];   ripfroit  r.  Birtlos,  1  M.  &  15  C.  B.  278. 

W.  441.  (0  Lee  v.  Cooke,  2  H.  &  N.  584;  3 

(}))  Baggc,  app.,  Miiwhy,  rcsp.,   8  Id.  203 ;  27  L.  J.,  Ex.  337. 

Excli.  fi41.  (h)  Smitii  v.  Torr,  3  F.  &  V.  505; 

(7)  llutcliins  r.  Cliainbcrs,  1    Burr.  and  .'^co  Si'(!t.  4. 

679;   1  Wnis.  Saund.  201,  n.  1.  (.1)  lU-ITord  r.  Alger,  1  Taunt.  218. 

768 


Ch.  XI.  S.  12.]         KESCUE   AND   POUND-BREACH.  *488 

goods  liable  to  distress  sufficient  to  discharge  the  rent  in 
arrear  and  the  costs  of  the  distress,  and  might  thereby  have 
paid  the  arrears  of  rent,  but  neglected  so  to  do  and  wrong- 
fully made  a  second  distress  for  the  same  rent ;  it  was  held 
ill  on  special  demurrer,  assigning  for  cause  that  the  plea  did 
not  show  that  the  rent  was  satisfied  by  the  former  distress  (//). 
And  where  to  an  avowry  ])y  executors,  for  rent  due  in  the 
lifetime  of  their  testator,  there  was  a  plea  in  bar  that  the 
testator  took  as  a  distress  for  the  same  rent  goods  of  a  suffi- 
cient value  to  satisfy  such  rent  and  the  costs  of  taking  the 
distress ;  it  was  held  insufficient,  as  it  should  have  shown 
that  such  distress  produced  a  satisfaction  of  the  rent  (z). 


Sect.  12.  —  Rescue  mid  Pound-Breach. 

What  amounts  to  a  rescue.  —  Rescue  is  where  the  owner, 
or  other  person,  by  force  takes  away  a  thing  distrained  from 
the  person  distraining,  after  the  latter  has  been  actually  in 
possession  ;  but  if  he  never  in  fact  had  possession  —  as  when 
disturbed  in  making  the  distress  —  it  is  no  rescue  (a).  It  is 
also  called  rescous,  from  recourser  (recuperate^,  to  take  from 
or  recover.  It  is  deffiied  by  Lord  Coke  to  be  a  taking  away 
and  setting  at  liberty  against  law  a  distress  taken,  or  a  per- 
son arrested  by  the  process  or  course  of  law  (?>).  If  cattle 
distrained  go  on  to  the  premises  of  the  owner  while  being 
driven  to  the  pound,  and  he  refuse  to  deliver  them  up  upon 
demand  by  the  distrainer,  it  is  a  rescue  in  law  (c)  :  but  where 
the  plaintiff  distrained  the  defendant's  cattle  damage  feasant, 
and  went  to  apprise  the  defendant,  and  during  his  absence  the 
cattle  escaped  for  half  an  hour  into  the  defendant's  grounds, 
from  whence  the  plaintiff  on  his  return  drove  them 
to  his  own  yard ;  it  was  held,  that  the  *  defendant  [*488] 
having  taken  them  from  thence,  it  was  no  rescue  (f?). 
Where  the  landlord   employed  a  sheriff's  officer,    who  took 

(y)  Hudd  V.  Ravenor,  2  Brod.  &  B.  («)  BuUen  N.  P.  84. 

662^;  Dawson  v.  Cropp,  1  C.  B.  9G1 ;  (6)  Co.  Lit.  160. 

."  T>.  &  L.  225.  (c)  Co.  Lit.  161  a. 

(z)  Linsliani  r.  Warren,  2  Brod.  &  (d)  Knowles  r.  Blake,  5  Bing.  499. 
B.  36;  Biillen,  206. 

759 


*488  DISTRESS    FOR    RENT.  [Ch.  XI.  S.  12. 

possession  under  the  tlistress,  and  then,  on  receiving  a  fi.  fa., 
sold  the  goods  under  it,  this,  though  done  by  the  same  per- 
son, was  held  to  be  a  rescue  and  pound-breach  (e).  The 
folio winof  facts,  however,  were  held  insufficient  to  enable  the 
plaintiff  to  maintain  an  action  for  a  pound-breach  or  rescue. 
The  plaintiff  levied  a  distress  for  rent  in  arrear,  and  im- 
pounded the  goods  upon  the  premises ;  the  superior  landlord 
afterwards  distrained  for  rent  due  to  him  from  the  plaintiff : 
whilst  the  plaintiff's  •bailiff  was  removing  the  goods,  the 
defendant,  a  sheriff's  officer,  came  into  the  house,  and  said 
that  he  had  a  ti.  fa.  against  the  plaintiff,  and  that  he  would 
not  allow  the  goods  to  be  removed :  plaintiff's  tenant  there- 
upon ejected  plaintiff's  bailiff,  and  brought  back  the  goods 
which  had  been  removed  (/). 

When  a  rescue  may  be  made.  —  If  a  distress  be  taken  with- 
out cause,  the  part}-  may  lawfully  make  a  rescue  before  it  is 
impounded  ( ^)  ;  but  if  it  is  impounded,  he  cannot  justify  a 
breach  of  the  pound  to  take  it  out ;  because  the  distress  is 
then  in  the  custody  of  the  law(/0.  Whenever  the  distrainer 
abandons  and  quits  possession  of  the  distress,  the  re-taking 
of  it  by  the  tenant  or  owner  is  not  a  i-escue  (0-  So  if  a 
distrainer  takes  the  distress  out  of  the  place  where  it  was 
originally  impounded,  for  the  purpose  of  making  an  unlaw- 
ful use  of  it,  the  owner  may  interfere  and  take  it  out  of  his 
j)Ossession,  without  rendering  himself  liable  either  for  a  rescue 
or  for  pound-breach  (7c). 

Remedies  for  rescue  and  pound-breach.  —  By  the  common 
liiw,  if  a  man  broke  the  pound,  or  the  lock  of  it,  or  any  part 
of  it,  he  "  greatly  offended  against  the  peace,  and  committed 
a  trespass  against  the  king,  and  to  the  lord  of  the  fee,  the 
sheriffs  and  hundredors  in  breach  of  tlie  peace,  and  to  the 
party  in  delay  of  justice  :  wherefore  hue  and  cry  was  levied 

if.)  Iteddc'll  V.  Stowey,  2  Moo.  &  K.  '.»  Co.  It.  2:3  b  ;  Keen  v.  Priest,  4  II.  & 

358;    Turner  v.   Ford,   15  M.  &  W.  N.  240,  Bramwell,  B.;  Bullen,  207. 

212.  (A)  Cotswortli  V.   Hettison,  1  Salk. 

(/)  Story  V.  Finnis,  0  Exch.   123;  247;  1  Ld.  Uaym.  105. 

2  L.,  M.  &  P.  19».  (0  Dod    r.  Monger,  (5    Mod.   210; 

((/)  Co.   Lit.  47  h;    101  a;   Bevil'.s  Bradley,  282. 

case,  4  Co.  K.  Ill);  Case  of  Avowry,  {k)  Smith    v.   Wriglit,  0    II.   &   N. 

821 ;  30  L.  .].,  Ex.  313. 

760 


Ch.  XI.  S.  12.]  RESCUE   AND   POUND-BREACH.  *489 

against  him  as  against  those  who  broke  the  peace  ;  and  the 
party  who  distrained  might  take  the  goods  again  wliere- 
soever  he  found  them,  and  again  impound  them  "  (^). 

Recovery  of  treble  damages.  — By  2  W.  &  M.  sess.  1,  C.  5,  s.  4, 
on  any  pound-breach  or  rescous  of  goods  distrained  for  rent, 
the  person  grieved  thereby  shall,  in  a  special  action  upon  the 
case,  recover  treble  damages  and  costs  against  the  offender, 
or  against  the  owner  of  the  goods,  if  they  be  afterwards 
found  to  come  into  his  use  or  possession.  If  a  distrainer 
abuse  a  distress  by  working  it,  the  owner  may  inter- 
fere and  prevent  it,  and  no  *  action  is  maintainable  [*489] 
against  him  for  pound-breach  or  rescue  («t).  Where 
goods  fraudulently  removed  and  distrained  on  the  premises 
of  a  third  party  are  rescued  by  liim,  it  may  be  a  question 
whether  an  action  in  respect  of  such  rescue  can  be  main- 
tained under  this  section  (/i).  In  an  action  on  this  statute 
it  has  been  held  that  it  is  no  answer  that  the  rent  and 
demand  were  tendered  after  the  distress  and  impounding  (o). 
Trover  is  not  maintainable  by  the  landlord  for  goods  dis- 
trained by  him,  he  having  no  property  in  them,  nor  even  the 
constructive  possession  of  them  (jt>). 

Costs.  —  Treble  costs  as  well  as  treble  damages  are  given 
by  this  statute,  but  treble  costs  were  abolished  by  Pollock's 
Act  (6  &  7  Vict.  c.  97),  which  substituted  '*a  full  and  rea- 
sonable indemnity  as  to  all  costs  and  charges  in  and  about 
the  action"  (g). 

The  act  6  &  7  Vict.  c.  30,  amending  the  "  Law  relating  to 
Pound-Breach  and  Rescue  in  certain  Cases,"  does  not  extend 
to  distress  for  rent,  but  applies  only  to  distress  of  cattle 
"  damage  feasant." 

Note  on  Distress  Damage  Feasant.  —  Although  tlie  right  of  distress 
damage  feasant  does  not  arise  out  of  the  relation  between  landlord  and  ten- 
ant, it  may  be  useful  to  add  here  a  few  words  respecting  tliat  kind  of  distress, 

(/)  1  Inst.  47.  212;   Wilbraham  v.  Snow,  2    Saund. 

(rft)  Smitli  r.  Wright,  supra.  47  a. 

(n)  Harris  r.  Thirkeld,  20  L.  T.  98.  (q)  It    is    doubtful    whether    Pol- 

(o)  Firth  V.  Purvis,  5  T.  R.  432.  lock's  Act  is  not  repealed  by  R.  S.  C. 

Ip)  Turner' r.  Ford,  15  M.  &  W.       Order  LXV.    See  Garnett  y.  Bradley, 

L.  R.,  3  App.  Ca.  at  pp.  901,  970. 
761 


*490  DISTRESS   FOR   RENT.  [Cii.  XI.  S.  12. 

which  resembles  distress  for  rent  in  many  of  its  incidents,  but  not  in  all.  It 
is  laid  down  in  BuUen  on  Distress  (where  the  law  of  the  subject  is  fully  dis- 
cussed (see  pp.  227-242)),  that  a  distress  damage  feasant  may  be  made  of  any 
cattle  or  other  things  animate  or  inanimate  which  are  wrongfully  upon  a  man's 
land  or  in  his  house,  incumbering  it  or  otherwise  doing  damage.  This  right 
is  founded  on  the  principle  of  recompense,  which  justifies  a  person  in  retain- 
ing that  which  occasions  injury  to  his  property  till  amends  be  made  by  the 
owner.  The  thing  distrained  must  be  taken  in  the  act  (Wormer  r.  Biggs,  2 
C.  &  K.  31).  There  is  this  difference  between  a  distress  for  rent  and  a  dis- 
tress damage  feasant,  that  in  the  former  case  a  man  may  distrain  any  cattle 
he  finds  on  the  premises,  but  in  the  other  case  they  must  be  actually  doing 
damage,  and  are  only  distrainable  for  the  damage  they  are  then  doing  and 
continuing :  for  if  they  have  done  damage  to-day  and  have  gone  otf ,  and  come 
again  at  another  time  and  are  doing  damage,  and  are  taken  for  that,  and  the 
owner  tenders  amends  for  the  latter  damage,  the  party  cannot  justify  keeping 
them  for  the  first  damage  (Vaspor  i\  Edwards,  12  Mod.  658,  060;  1  Ld. 
Raym.  719;  1  Salk.  248;  Co.  Lit.  161  a).  Each  beast  taken  can  be  seized  and 
detained  for  the  damage  which  has  actually  been  done  by  itself  onl\',  and  not 
for  the  general  damage,  or  any  part  of  it  which  has  been  done  by  the  others 
(Id.).  To  justify  a  distress  damage  feasant  it  is  sufficient,  however,  that  the 
distrainer  entered  the  locus  in  quo  whilst  the  cattle  were  in  it  (Clement  i;. 
Milner,  3  Esp.  95)  ;  but  if  it  appear  tiiat  the  party  distraining  had  not  actually 
got  into  the  locus  in  quo  before  the  cattle  had  got  out  of  it,  the  justification 
cannot  be  supported  (Id.).  The  remedy  is  not  confined  to  the  mere  owner  of 
the  soil  upon  which  they  may  be  found,  but  extends  to  all  who  may  receive 
injury,  such  as  commoners  or  other  persons  entitled  to  the  use  or  produce  of 
the  land  merely  (Hall  v.  Harding,  4  Burr.  2432).  Where  A.  demised  to  B. 
the  milk  of  twenty-two  cows  to  be  provided  by  A.  and  to  be  fed  at  A.'s  ex- 
pense on  certain  closes  belonging  to  A. ;  A.  covenanting  that  B.  might  turn  out  a 
mare,  and  tliat  no  other  cattle  should  be  fed  there ;  it  was  held,  that  the  sepa- 
rate herbage  and  feeding  of  those  closes  passed  to  B.,  and  that  B.  might 
[*490]  distrain  other  cattle  of  A.  doing  *  damage  there  (Burt  v.  Moore,  5  T.  R. 
329).  A  tenant  holding  over  after  the  expiration  of  his  term  cannot 
lawfully  distrain  the  landlord's  cattle  put  upon  the  premises  by  way  of  taking 
possession  (Taunton  ?•.  Costar,  7  T.  R.  401 ;  Butcher  r.  Butcher,  7  B.  &  C.  399). 
No  kind  of  thing  which  is  capable  of  being  damage  feasant  and  not  in  actual 
use  is  exempt  from  distress  for  such  damage.  F'or  damage  feasant  the  party 
grieved  or  his  agent  may  distrain  in  the  nigiit,  otherwise  it  may  be  the  beasts 
will  be  gone  before  he  can  take  them  (Co.  Lit.  142  a).  If  a  suflicient  tender 
be  made  of  damages  before  the  taking,  tlie  taking  is  unlawful ;  if  after  the 
taking,  and  before  the  inipoundhig,  then  although  the  taking  is  lawful,  the 
detainer  after  the  tender  is  unlawful;  and  in  either  case  replevin  may  be 
maintained  (Evans  r.  Elliott,  5  A.  &  E.  142;  (hilliver  v.  Cozens,  1  C.  B.  788; 
West  V.  \ibbs,  4  C.  B.  172).  A  distress  damage  feasant  cannot  be  sold  for 
the  damage  done  (Layton  r.  Hurry,  8  Q.  B.  811).  By  0  &  7  Vict.  c.  30, 
power  is  given  to  two  justices,  where  cattle  are  distraint'd,  to  convict  jx-rsons 
releasing  or  attemjjting  to  release  them  ;  and  the  justices  may  award  any  part 
of  tlie  penalty  to  the  person  on  whose  behalf  tlie  distress  is  made.  The  jus- 
tices cannot  act  in  cases  of  disputed  title  and  other  cases. 

762 


Ch.  XI.  S.  13.]       SATISFACTION    OF    ARREARS    OF    RENT.  *491 

Sect.  13.  — Satisfaction   of  Arrears  of  Rent  by  Execution 

Creditor. 

(a)  Execution  in  High  Court. 

Goods  in  the  custody  of  the  law  under  an  execution  cannot 
at  common  law  be  distrained  for  rent  (r).  But  to  prevent 
collusion  between  tenants  and  their  judgment  creditors  to 
defeat  the  landlord's  remedy  by  distress,  8  Ann.  c.  14,  s.  1, 
enacts,  that  "  no  goods  or  chattels  whatsoever  lying  or  being 
in  or  upon  any  messuage,  lands  or  tenements  wliich  are  or 
shall  be  leased  for  life  or  lives,  term  of  years,  at  will  or  other- 
wise, shall  be  liable  to  be  taken  by  virtue  of  any  execution  on 
any  pretence  whatsoever,  unless  the  party  at  whose  suit  the 
said  execution  is  sued  out,  shall,  before  the  removal  of  such 
goods  from  off  the  said  premises,  by  virtue  of  such  execution, 
or  extent,  pay  to  the  landlord  of  the  said  premises  or  his 
bailiff  all  such  sum  or  sums  of  money  as  are  or  shall  be  due 
for  rent  for  the  said  premises  at  the  time  of  the  taking  such 
goods  or  chattels  by  virtue  of  such  execution,  provided  the 
said  arrears  of  rent  do  not  amount  to  more  than  one  year's 
rent ;  and  in  case  the  said  arrears  shall  exceed  one  year's 
rent,  then  the  said  party  at  whose  suit  such  execution  is 
sued  out,  paying  the  said  landlord  or  his  bailiff  one  year's 
rent,  may  proceed  to  execute  his  judgment  as  he  might  have 
done  before  the  making  of  the  act ;  and  the  sheriff  or  other 
officer  is  hereby  empowered  and  required  to  levy  and  pay  to 
the  plaintiff  as  well  the  money  so  paid  for  rent  as  the  execu- 
tion money." 

Saving  for  crown  debts.  —  Section  8  provides,  that  nothing 
in  the  act  contained  shall  extend,  or  be  construed  to  extend, 
to  let,  hinder  or  prejudice  her  Majesty,  her  heirs  or  succes- 
sors, in  the  levying,  recovering  or  seizing  any  debts,  fines, 
penalties  or  forfeitures  due,  payable  or  answerable  to 
*  her,  but  that  it  shall  and  may  be  lawful  for  her  to  [*491] 
levy,  recover  and  seize  the  same  in  the  same  manner 
as  if  the  act  had  never  been  made. 

(»•)  Ante,  442;  Co.  Lit.  47  a;  Wharton  v.  Naylor,  12  Q.  B.  67.".;  G  D.  &  L. 
136. 

763 


*491  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  13. 

Tenancies  for  less  than  a  year.  —  By  7  &  8  Vict.  C.  96,  S. 
67,  '^  no  landlord  of  any  tenement  let  at  a  weekly  rent  shall 
have  any  claim  or  lien  upon  any  goods  taken  m  execution 
under  the  process  of  any  court  of  law  for  more  than  four 
weeks'  arrears  of  rent ;  and  if  such  tenement  shall  be  let  for 
any  other  term  less  than  a  year,  the  landlord  shall  not  have 
any  claim  or  lien  on  such  goods  for  more  than  the  arrears  of 
rent  accruing  during  four  such  terms  or  times  of  payment." 

County  court  executions.  —  The  19  &  20  Vict.  c.  108,  s.  75, 
enacts  that  the  3  Ann.  c.  14,  s.  1,  "  shall  not  apply  to  goods 
taken  in  execution  under  the  warrant  of  a  county  court," 
and  provides  a  special  process  for  such  a  case  (s). 

Application  of  statute  of  Anne.  —  The  8  Ann.  c.  14,  s.  1, 
is  to  be  construed  liberally  (^)  i.e.  in  favour  of  landlords. 
It  does  not,  however,  apply  to  executions  at  the  suit  of  the 
landlord  ((i).  The  words  "party  at  whose  suit  the  execu- 
tion is  sued  out  "  are  not  confined  to  plaintiffs,  but  have  been 
held  to  apply  where  a  defendant  sued  out  execution  for  his 
costs  of  defence  (r),  and  to  a  seizure  under  an  outlawry  in  a 
civil  suit  (;y),  or  under  a  sequestration  from  the  Court  of 
Chancery  (2).  Where  there  are  two  or  more  executions  the 
landlord  cannot  have  a  year's  rent  on  each  (a).  If  the  goods 
remain  on  the  demised  premises  after  a  fictitious  bill  of  sale 
made  of  them  under  an  execution,  they  are  liable  to  be 
distrained  (/>).  Notwithstanding  a  fraudulent  bill  of  sale 
by  the  tenant  the  property  remains  vested  in  him,  so  as  to  be 
liable  to  an  execution  against  his  goods,  or  a  distress  (c). 
The  act  applies  to  all  goods  and  chattels  whatsoever  iipon 
the  demised  premises,  whether  l)elonging  to  the  tenant  or 
not  (r7)  :  and  whether  liable  to  a  distress  or  not  (/')• 

No   goods   may   be   removed,  &c.  —  None  of   the   goods  may 

(s)  Post,  400.  («)  Dod  V.  Saxby,  2  Stra.  1024. 

(<)  Ilenchett  v.  Kimpson,  2  Wils.  (/>)  Smith  v.  Russoll, :]  Taunt.  400. 

141.  (r)  Reed   v.   Thoyts,  0  M.  &   W. 

(h)  Taylor  r.  Lanyon,  0  Bing.  636.  410  ;  8  Dowl.  410. 

(r)  Ileneliett  v.  Kimpson,  supra.  (d)  Forster  v.    Cookson,  1  Q.    B. 

(//)  St.  Jolm's  College,  Oxford  i-.  410;  Duck  v.  Braddyll,  M'Clel.  217; 

Murcott,    7    T.   1{.  2^0  ;    Watson    on  13  Price,  4.%. 

Sheriff,  277  (2nd  ed.)  ;  Atkinson  on  (c)  Kiselcy  v.   Ryle,  11  M.  &  W. 

Sheriff,  311  (Gthcd.).  10,  22. 

(:)  Dixon  c.  Smith,  1  Swanst.  457. 

764 


Ch.  XI.  S.  1:3.]  SATISFACTION    OF   AKUEAKS.  *492 

be  removed  from  off  the  demised  premises  until  the  rent  is 
paid,  otherwise  the  sheriff   will  be  personally  liable   to   an 
action  founded  on  the  statute  (/)  ;  or  to  a  summary  applica- 
tion to  the  Division  of  the  High  Court  out  of  which  the  execu 
tion  issued,  or  to  a  judge,  to  compel  him  to  pay  the  arrears 
of  rent  (not  exceeding  one  year's  rent)  and  the  costs 
of   the   application  ((/),  but   an   actual  removal  *  is  [*492] 
necessary:  the  mere  execution  of  a  bill  of  sale  by 
the  sheriff  to  a  purchaser  is  not  sufficient  (Ji).     No   action 
lies  against  the  execution  creditor  for  any  svich  removal,  it 
being  the  act  of  the  sheriff  (i). 

There  must  be  a  subsisting  tenancy.  —  The  act  only  applies 
to  a  subsisting  tenancy,  and  the  landlord's  statutory  right  to 
be  paid  arrears  of  rent  ceases  on  determination  of  the  lease  (Jc). 
Where  in  an  agreement  for  the  sale  of  certain  premises 
there  was  a  stipulation  that  "in  the  mean  time  and  until 
the  assignment  was  made,  the  purchaser  should  pay  and 
allow  to  the  vendor  at  the  rate  of  100?.  per  annum,  from  the 
time  of  taking  possession  of  the  premises  until  the  comple- 
tion of  the  purchase,  in  equal  half-yearly  payments  ; "  the 
purchaser  having  taken  possession,  and  one  half-yearly  pay- 
ment being  due,  it  was  held  that  it  was  due  as  rent^  and  that 
the  vendor  was  entitled  to  it,  under  the  statute  of  Anne, 
before  the  removal  of  any  of  the  goods  which  had  been 
seized  under  an  execution  after  it  became  due  (l). 

Forehand  rents.  —  The  act  applies  to  forehand  rents,  pay- 

(/)  Levy  V.  Godson,  4  T.  R.  687 ;  G.  1001 ;    1   D.   &  L.    901  ;  White  v. 

Calvert  v.  Joliffe,  2  B.  &  Adol.  418 ;  Binstead,  13  C.  B.  304. 
Wintle  V.  Freeman,  11  A.  &  E.  547  ;  (/)  Palgrave  v.  Windham,  1   Stra. 

Riseley  v.  Ryle,  1  Dowl.,  N.  S.  660;  212;   Riseley  v.  Ryle,    11   M.   &  \\ . 

10  M.  &  W.  101;  11  Id.  16;  Forster  16,  20 ;  Cocker  v.  Musgrove,  9  Q.  B. 

V.   Cookson,    1   Q.    B.   419;  Bible    v.  230. 

Hussey,  2  Ir.  Com.  L.  R.  308 ;  16  W.  (t)  Cox  v.  Leigh,  L.  R.  9   Q.  B. 

R.  710;  Watson  on  Sheriff,  277  (2nd  333;  43  L.  J.,  Q.  B.   123;  30   L.  T. 

ed.).  494;  22  W.  R.  730.     8ee  too  Cook  i-. 


((]')  West  V.  Hedges,  Barnes,  211 
6   M.  &  G.  1004,  note;    Henchett   v. 
Kimpson,   2    Wils.    140 ;    Arnett    v 
Garnett,  3   B.    &  A.   440;  Yates    v 
Rutledge,  5  H.  &  N.  24©. 

(Ji)  Smallman  v.  Pollard,  6  M.   & 


Cook,  Andrews,  219 ;  Hodgson  v. 
Gascoigne,  5  B.  «&  Aid.  88;  Riseley  r. 
Ryle,  10  M.  &  W.  101  ;  11  Id.  16. 

(/)  Saunders  r.  Musgrave,  6  B.  & 
C.  524;  2  C.  &  V.  294;  Anderson  i-. 
Midland  R.  Co.,  3  E.  &  E.   614;  30 
L.  J.,  Q.  B.  94. 
765 


*493  DISTRESS   FOR   RENT.  [Ch.  XL  S.  13. 

able  in  advance  (wj),  even  when  reserved  in  a  mortgage  deed 
by  way  of  further  security  for  the  interest  Qn),  also  to  cases 
of  lessee  and  subtenant  of  apartments  (o)  but  not  as  between 
the  ground  landlord  and  a  sublessee  of  his  tenant  (jw). 

Executors  and  administrators.  —  The  executor  or  adminis- 
trator of  a  deceased  landlord  who  might,  but  for  the  execu- 
tion, distrain  for  arrears  of  rent,  is  entitled  to  claim  such 
rent  (not  exceeding  one  year's  rent)  from  the  sheriff  (5') ; 
but  not  an  administrator  who  first  obtains  letters  of  adminis- 
tration after  the  goods  have  been  removed  and  sold,  and  the 
proceeds  paid  over  to  the  execution  creditor  (r). 

Liability  of  sheriff.  —  The  sheriff  is  liable  to  an  action  at 
the  suit  of  the  landlord,  for  not  paying  a  year's  rent,  though 
the  sheriff  ought  not  to  have  seized  the  goods  on  account  of 
the  tenant  having  become  bankrupt,  and  may  therefore  be 
liable  also  to  an  action  at  the  suit  of  the  assignees  (s). 
Where  a  sheriff  seized  and  sold  goods  under  a  fi.  fa.,  he  was 
held  to  be  liable  to  pay  the  whole  of  the  proceeds  to  the 
assignees  of  the  tenant,  though  he  had  paid  a  year's  rent 
to  the  landlord  (^).  In  order  to  enforce  a  landlord's  claim' 
for  a  year's  rent  against  trustees  of  a  bankrupt  tenant, 
after  a  seizure  under  a  fieri  facias  which  is  illegal 
[*493]  as  *  against  them,  there  must  be  an  actual  distress : 
unless,  perhaps,  the  sheriff  has  paid  the  amount 
before  he  had  notice  of  the  bankruptcy  (it).  Where  the 
sheriff  seizes  and  removes,  under  a  fi.  fa.,  goods  which  are 
not  the  property  of  the  judgment  debtor,  and  afterwards 
pays  the  whole  of  the  proceeds  of  the  sale  to  the  real  owner, 
he  is  still  liable  under  the  statute  for  not  paying  a  year's 
rent  to  the  landlord  (a;).  Under  a  fi.  fa.  against  A.,  the 
sheriff  seized  the  goods  of  B. ;    B.  claiming  them,  the  sheriff 

(m)   Harrison   v.  Barry,   7   Price,  (r)  Walring  r.  Dewberry,   1  Stra. 

600;  Duck  V.  Braddyll,  M'Clel.  217  ;  97. 

1:5  Price,  455.  (s)  Duck  v.  Braddyll,  M'Clcl.  217  ; 

(h)  Yates  v.  Ratledge,   5  II.  &  N.  13  Price,  455. 

249.  (0  Lee  v.  Lopes,   Bart.,  15   East, 

(0)    Thurgood    v.    Richardson,    7  230. 

Bing.  428;  4  C.  &  P.  481.  (n)  nctliiii   r.  Wilk.s  2  Dowl.  189. 

f/<)  Bennett's  case,  2  Stra.  7H7.  (.' )   Forster   v.  Cookson,  1  Q.  B. 

(7)  Palgrave  v.  Windham,  1  Stra.  419. 
212. 

766 


Ch.  XI.  S.  1?,.]  SATISFACTION   OF   ARliEAKS.  *493 

obtained  an  order  under  the  Interpleader  ^Vct,  and  C,  the 
hmdlord,  claimed  25^.  for  a  quarter's  rent.  The  goods  were 
sold  under  the  order,  and  the  amount,  after  deducting  the 
25/.,  was  paid  by  the  sheriff  into  court.  On  the  trial  of 
the  issue,  B.  established  his  claim ;  it  was  lield,  that,  under 
the  circumstances,  the  sheriff  was  not  justified  in  paying  the 
rent  (y). 

Landlord  entitled  to  full  year's  rent.  —  The  landlord  is  enti- 
tled to  a  full  year's  rent  (if  so  much  is  in  arrear)  notwith- 
standing he  has  usually  remitted  some  portion  of  it  to  the 
tenant  (2).  But  he  can  only  claim  from  the  sheriff  the  rent 
which  Avas  due  at  the  time  of  the  taking  the  goods  in  execu- 
tion, and  not  that  which  accrued  after  the  taking  and  during 
the  continuance  of  the  sheriff  in  possession  (a).  This  used 
to  be  so  where  growing  crops  were  seized  under  an  execu- 
tion and  remained  in  the  custody  of  the  sheriff  or  his  vendee 
until  they  became  ripe  and  were  cut  and  carried  within  a 
reasonable  time  in  that  behalf  (^). 

Growing  crops  seized  liable  for  rent  due  after  seizure.  —  But 
now,  by  14  &  15  Vict.  c.  25,  s.  2,  "in  case  all  or  any  part  of 
the  growing  crops  of  the  tenant  of  any  farm  or  lands  shall 
be  seized  and  sold  by  any  sheriff  or  other  officer  by  virtue  of 
any  writ  of  fieri  facias  or  writ  of  execution,  such  crops,  so 
long  as  the  same  shall  remain  on  the  farms  or  lands,  shall,  in 
default  of  sufficient  distress  of  the  goods  and  chattels  of  the 
tenant,  be  liable  to  the  rent  which  may  accrue  and  become 
due  to  the  landlord  after  any  such  seizure  and  sale,  and  to 
the  remedies  by  distress  for  recovery  of  such  rent,  and  that 
notwithstanding  any  bargain  and  sale  or  assignment  which 
may  have  been  made  or  executed  of  such  growing  crops  by 
any  such  sheriff  or  other  officer."  In  consequence  of  this 
enactment,  the  execution  creditor  can  only  make  sure  of 
being  able  to  sell  the  crops,  under  an  execution  for  their 
value,  minus  the  accruing  rent;  and  the  landlord  may  after- 

0/)  White  V.  Binstead,   13   C.  B.  245  ;  Reynolds  r.  Barford,  7  M.  &  G. 

304.'  449;  2  1).  &  L.  327. 

(z)    Williams   v.  Lewsey,  8  Bing.  (h)  Wharton  i'.  Naylor,  12  Q.  B. 

28.  ^  673;  6  D.  &  L.  136. 

(a)  Hoskins  v.  Knight,  1  M.  &  S. 

767 


*494  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  13. 

wards  favour  the  purchaser  to  the  detriment  of  the  tenant 
by  abstaining  from  distraining  upon  the  crops  so  sold,  and 
suing  the  tenant  for  such  rent,  or  distraining  for  it  on  other 
goods. 

Whether  actual  notice  to  the  sheriff  is  necessary.  —  It  is  not 
clear  whether  the  statute  of  Anne  requires  notice  to  be  given 

to  the  sheriff  of  the  arrears  of  rent  due  and  claimed 
[*494]  by  the  *  landlord.     Such  notice  is  not  required  in 

express  terms ;  and  it  has  been  held  that  knowledge 
by  the  sheriff  of  the  arrears  due  is  equivalent  to  actual 
notice  thereof  (^r).  In  more  recent  acts  in  pari  materia 
notice  is  expressly  required  (t^).  And  under  8  Anne  it  has 
been  held  that  the  landlord  must  demand,  or  the  sheriff  is 
not  bound  to  secure,  the  rent,  for  he  cannot  take  notice  what 
the  arrears  are ;  but  if  the  landlord  comes  and  acquaints  him 
with  them,  then  and  not  till  then  is  he  obliged  to  see  the 
year's  rent  satisfied  before  removal  of  the  goods  (e).  Where 
an  action  was  brought  against  the  sheriff  by  the  execution 
debtor  for  seizing  and  selling  more  goods  than  were  neces- 
sary to  satisfy  two  executions,  the  court  decided  against  the 
sheriff  expressly  on  the  ground  that  he  had  no  right  to  levy 
for  rent  without  a  claim  being  first  made  by  the  landlord  (/). 
In  an  action  against  the  sheriff,  founded  on  the  statute,  notice 
is  always  alleged,  and  should  not  be  omitted  (^).  But  after 
verdict,  an  allegation  that  the  sheriff,  *•'  well  knowing  the 
premises,"  removed  the  goods  without  paying  the  rent, 
seems  to  be  sufficient  upon  motion  in  arrest  of  judgment  or 
on  appeal  (A).  Notice  from  the  landlord  to  the  execution 
creditor  is  clearly  unnecessary  (0. 

(c)  Andrews  v.  Dixon,  3  B.  &  A.  (7)  Arch.  L.  &  T.  255;  BuUcn  &  L. 
645;  Kiseley  i-.  Ryle,  11  M.  &  W.  20;  PI.  403  (3r(l  ed.)  ;  Tluirgood  v.  Rich- 
Bible  V.  Ilusscy,  2  Ir.  Com.  L.  R.308;  ardson,  7  Ring.  428;  4  C.  &  P.  481 ; 
16  W.  R.  710.  Reed   v.  Thoyts,  6  M.  &  W.  410;  8 

(<i)  19  &  20  Vict.  c.  108,  8.  75 ;  7)o.s/,  Dowl.   410;    Hible    r.    llussey,   2   Ir. 

490;  24  Vict.  c.   10,  s.  10;  post,  497.  Com.  L.  R.  308;  10  W.  R.  710. 

(c)    Waring  v.   Dewl)orry,    1   Stra.  (Ii)  See  Lane  v.  Crockett,  7  Price, 

97;  and  sec  Colyer  c.  Speer,  2  Brod.  50(5;    Palgrave  v.  Windham,  1  Stra. 

&  li.  67  ;  Smith  v.  Russell,  3  Taunt.  212,  214. 

400.  (/■)  Palgrave  r.  Windham,  supra. 

(/)  Gawler  1;.  Chaplin,  2  Exch.  503, 
507. 

768 


Ch.  XI.  S.  13.]  SATISFACTION    OF    AltKEARS.  *495 

Such  notice  should   al-ways  be  given.  —  The   notice   to    the 

sheriff  is  only  lor  the  purpose  of  establishing  beyond  all 
doubt  his  knowledge  of  the  landlord's  claim  (/c),  and  should 
always  be  given  by  or  on  behalf  of  the  landlord  (Z).  As  the 
statute  has  not  specified  any  particular  form,  there  can  be  no 
dispute  about  the  terms  (wi),  A  notice  to  the  sheriff  stat- 
ing that  the  rent  is  due  to  J.  S.  and  the  mortgagees  of  his 
estate,  and  signed  by  a  person  who  is  not  the  receiver  ap- 
pointed by  the  mortgage  deed,  is  sufficient  (w).  The  notice 
may  be  given  before  or  after  the  goods  have  been  removed 
from  the  demised  premises,  and  even  after  they  have  been 
sold,  but  before  the  proceeds  have  been  actually  paid  over  to 
the  execution  creditor  (o). 

Sheriff's  duty  on  receiving  notice.  —  When  the  sheriff  has 
notice  or  knowledge  of  rent  due  to  the  landlord,  he  should 
endeavour  to  secure  legal  evidence  on  that  point,  and  if 
possible  inspect  the  lease  (|?).  He  should  also  forthwith 
give  notice  to  the  execution  creditor  or  his  solicitor 
of  the  rent  in  arrear,  and  *  request  him  to  pay  the  [*495] 
same  to  the  landlord  or  his  bailiff  pursuant  to  the 
statute,  in  default  whereof  the  sheriff  will  withdraw  from 
possession  of  the  goods  seized  (5').  In  case  of  non-compli- 
ance with  this  notice,  within  a  reasonable  time,  the  sheriff 
should  withdraw  from  possession  and  make  a  return  of  nulla 
bona  (?') ;  unless,  indeed,  there  are  other  goods  within  his 
bailiwick,  in  which  case  the  levy  should  be  confined  to  them. 
"  The  sheriff,"  it  is  observed,  in  Cocker  v.  Musgrove,  "  is  not 
called  upon  by  law  to  advance  money  to  pay  the  rent ;  it  is 
plain  that  such  advance  must  be  made  by  the  execution 
creditor ;  and  if  he  neglects  to  make  it,  after  notice  of  the 
rent  being  due  at  all  events  (and  it  is  not  necessary  now  to 
say  whether  notice  be  requisite),  the  sheriff  cannot  be  called 

(it)  Andrews  v.  Dixon,  3  B.  &  A.  249;  Bible  y.  Hussey,  2  Ir.  Com.  L. 

645.  R.  308;  16  W.  K.  710. 

f/)  See  Form,  Appendix  D.,  No.  9.  (/>)   See  Augustein   v.   Challis,    1 

(/?0  Colyer  v.  Speer,  2  Bred.  &  B.  Exch.  279. 

67.  (9)  See  Form,  Appendix  D.,  No.  10. 

(n)  Colyer  v.  Speer,  ante.  (?)   Cocker  v.  Musgrove,  9   Q.   B 

(())  Arnitt   v.  Garnitt,  3  B.  &  A.  223,  285. 
440;  Yates  v.  Ratledge,  5  H.  &  N. 

769 


*496  DISTRESS   FOR   RENT.  [Ch.  XI.  S.  13. 

upon  to  sell  the  goods  let  their  value  he  what  it  will.  Until 
the  rent  be  paid,  there  are  no  goods  out  of  which  the  sheriff  is 
hound  to  levy^  that  is,  which  he  is  bound  to  sell"  (s).  The 
statute  says  that  the  goods  shall  not  be  "  liable  to  be  taken," 
i.e.  taken  and  sold  under  the  execution,  "  unless  the  party  at 
whose  suit  the  said  execution  is  sued  out,  shall  before  the 
removal "  pay  the  rent  (t).  "  It  is  clear  the  statute  does  not 
mean  the  original  taking,  but  that  there  shall  not  be  a 
substantial  taking  for  the  satisfaction  of  the  debt,  that  is,  by 
the  removal  and  sale  of  the  goods,  without  payment  of  the 
rent"  (w).  Prior  to  the  decision  in  Cocker  -y.  Musgrove  (re), 
the  usual  practice  was  for  the  sheriff  to  sell  the  goods  under 
the  execution  and  out  of  the  proceeds  to  pay  the  landlord's 
rent,  and  to  aj^ply  the  surplus  (minus  expenses)  in  or 
towards  satisfaction  of  the  debt  or  damages  and  interest, 
with  costs  of  the  execution,  &c.,  as  indorsed  on  .the  writ  Qf)  ; 
and  he  may  still  adopt  that  course  if  he  thinks  fit,  and  so 
secure  his  poundage  fees,  &c.  He  is  entitled  to  poundage 
upon  the  amount  of  rent  levied  and  paid  (z)  ;  but  not  to 
deduct  it  from  the  landlord's  rent  (a).  By  proceeding  to 
sell  and  remove  with  notice  or  knowledge  that  rent  is  due, 
he  sometimes  runs  considerable  risk :  for  instance  the  prop- 
erty seized  may  belong  to  a  third  person  (?>)  ;  or  to  the  trus- 
tees of  the  tenant  who  has  become  a  bankrupt  (c),  or  the 
goods  when  sold  may  not  produce  sufficient  to  satisfy  the 
rent  (tZ).     The  amount  of    rent  claimed  may  be   disputed, 

especially  where  a  large  sum  is  claimed  for  a  penal 
[*496]  rent  of  so  much  *  per  acre  (e).     Moreover,  when  the 

landlord  makes  a  claim  for  rent,  the  sheriff  cannot 

(s)  Cocker  t;.  Musgrove,  9  Q.  B.  L.  J.,  Q.  B.  359 ;  Foulper  u.  Taylor,  5 

235;  Calvert  v.  Joliffe,  2  B.  &  Adol.  II.  &  N.  202  ;  Wliite  v.  Binstead,  13 

421.  C.  B.  304. 

(0  Ante.,  490.  (c)  Duck  v.  Braddyl,  M'Clel.  217  ; 

(u)   Per   Farko,   B.,  in   Riseley   v.  13  Trice,  455 ;  Lcc  r.  Lopes,  15  East, 

Ryle,  11  M.  &  W.  21.  230. 

(x)  9  Q.  B.  223,  235.  {d)  Ilenchett  v.  Kimpson,  2  Wils. 

(y)  1  Chit.  Arcli.  640  (11th  ed.).  141 ;  Calvert  v.  Joliffe,  2  B.  &  Adol. 

(z)  Davies  i-.  Edmonds,   12   M.  &  418;     Groombridge     v.    Fletcher,    2 

W.  31 ;  1  D.  &  L.  305.  Dow).  353. 

(«)  Gore  V.  Gofton,  1  Stra.  G43.  (c)  Bateman  v.  Farnsworth,  29  L. 

(/>)  Forster  r.  Cookson,  1  Q.  B.  419;  J.,  Ex.  366. 
Beard  v.  Knight,  8  H.  &.  B.  805 ;  27 

770 


Cn.  XI.  S.  13.]  SATISFACTION    OF   ARREARS.  *496 

• 

obtain  any  relief  against  such  claim  under  the  Interpleader 
Act(/).  And  it  was  held,  before  the  Judicature  Act,  that 
the  tenant  could  not  sustain  a  l)ill  of  interpleader  in  equity 
against  his  landlord,  unless  the  title  was  affected  by  some 
act  done  by  the  landlord  subsequently  to  the  lease  (,^).  All 
these  difficulties  may  generally  be  avoided  by  the  sheriff  giv- 
ing notice  to  the  execution  creditor,  and  proceeding  as  before 
suggested  (/t).  But  in  such  case  he  should  carefully  abstain 
from  a  removal  of  any  of  the  goods  from  off  the  premises 
until  the  rent  has  been  actually  paid  («').  He  should  also 
secure  legal  evidence  of  the  tenancy,  and  of  the  arrears  of 
rent  due  fZ"). 

Remedy  against  sheriff.  —  The  remedy  which  a  landlord  has 
in  cases  where  the  sheriff  proceeds  to  levy  the  execution  and 
remove  the  goods  without  payment  of  the  rent,  is  by  a  sum- 
mary application  to  the  court  or  to  a  judge  at  chambers, 
founded  upon  affidavits,  to  compel  the  sheriff  to  pay  the  rent 
due  (not  exceeding  one  year's  rent)  and  the  costs  of  the 
application  (J)  ;  or  by  a  special  action  on  the  case  against  the 
sheriff,  founded  on  the  statute  (m)  ;  but  not  an  action  for 
money  had  and  received  (ji). 

(b)    Under  County  Court  Process. 

Rent  may  be  claimed  in  5  days.  —  If  goods  be  taken  in  ex~ 
ecution  under  a  County  Court  Warrant,  the  statute  8  Ann. 
c.  14,  s.  1,  does  not  apply,  but  a  special  procedure  is  sub- 
stituted for  it  by  the  County  Court  Act,  1856,  under  which 
the  landlord  may  claim  rent  within  five  days  from  the  execu- 
tion, and  so  get  the  county  court  bailiff  to  distrain  for  him. 

The  words  of  the  act  (19  &  20  Vict.  c.  108,  s.  75)  are 
these  :  —  "  Section  one  of  the  act  of  the  eighth  year  of  the 

(/)  1  &  2  Will.  4,  c.  58,  s.  0;  Wat-  1001 ;  1  D.  &  L.  901 :  White  v.  Bin- 
son's  Sheriff,  282-288  (2nd  ed.)  ;  Hay-  stead,  l:^  C.  B.  304. 
thorn   V.    Bush,  2  Cr.   &  M.   869;   2  (/.)  Augustein   v.  Challis,  1  Exch. 
Dowl.  041;  Bateniaii  v.  Farnsworth,  279;    Keightley    v.    Birch,   3    Camp. 
20  I..  J.,  Ex.  305.  521. 

((/)   Cook  V.  Earl  Rosslyn,   1    GitT.  (l)  Ante,  491. 

167  ;  28  L.  J.,  Ch.  8:03.  ('«)  Ante,  491. 

(A)  Ante,  493.  (?i)  Green  r.  Austin,  3  Camp.  260. 

(0  Suiallman  v.  Pollard,  M.  &  G. 

771 


*497  DISTRESS    FOR    RENT.  [Ch.  XI.  S.  13. 

reign  of  Queen  Anne,  chapter  fourteen,  shall  not  apply  to 
goods  taken  in  execution  under  the  warrant  of  a  county 
court,  but  the  landlord  of  any  tenement  in  which  any  such 
goods  shall  be  so  taken  mai/  claim  the  rent  thereof  at  any  time 
within  five  clear  days  from  the  date  of  such  taking,  or  before 
the  removal  of  the  goods,  by  delivering  to  the  bailiff  or  officer 
making  the  lev}'  any  writing  signed  by  himself  or  his  agent, 
which  shall  state  the  amount  of  rent  claimed  to  be  in  arrear, 
and  the  time  for  and  in  respect  of  which  such  rent  is 
[*497]  due  (<?),  and  if  such  claim  be  made,  the  bailiff  or  *  offi- 
cer making  the  levy  shall  in  addition  thereto  distrain 
for  the  rent  so  claimed  and  the  costs  of  such  distress,  and  shall 
not  within  five  days  next  after  such  distress  sell  any  part  of 
the  goods  taken  unless  they  be  of  a  perishable  nature,  or 
upon  the  request  in  writing  of  the  party  whose  goods  shall 
have  been  taken ;  and  the  bailiff  shall  afterwards  sell  such 
of  the  goods  under  the  execution  and  distress  as  shall  satisfy, 
first,  the  costs  of  and  incident  to  the  sale,  next  the  claim  of 
-such  landlord  not  exceeding  the  rent  of  four  weeks  where  the 
tenement  is  let  by  the  week,  the  rent  of  two  terms  of  pay- 
ment where  the  tenement  is  let  for  any  other  term  less  than 
a  year,  and  the  rent  of  one  year  in  any  other  case,  and  lastl}^ 
the  amount  for  which  the  warrant  issued ;  and  if  any  replevin 
be  made  of  the  goods  so  taken,  the  bailiff  shall,  notwith- 
standing, sell  such  portion  thereof  as  will  satisfy  the  costs  of 
and  incident  to  the  sale  under  the  execution,  and  the  amount 
for  which  the  warrant  issued :  and  in  either  event  the  over- 
plus of  the  sale,  if  any,  and  the  residue  of  the  goods,  shall  be 
returned  to  the  defendant ;  and  the  poundage  of  the  high 
bailiff  and  broker  for  keeping  possession,  appraisement  and 
sale  under  such  distress  shall  be  the  same  as  would  have 
been  payable  if  the  distress  had  been  an  execution  of  the 
county  court,  and  no  other  fees  shall  be  demanded  or  taken 
in  respect  thereof." 

If  the  bailiff  seize  under  a  warrant  of  the  county  court,  on 
the  defendant's  premises,  goods  belonging  to  a  stranger,  he 
cannot  distrain  such  goods  under  this  enactment  for  the  rent 

(o)    See   Form,    Aiiiniiilix    1).,   No.   11. 

772 


Cii.  XI.  S.  i;].]  SATISFACTION   OF   ARREARS.  *498 

of  the  landlord ;  and  if  he  does  so  the  true  owner  is  entitled 
to  have  his  goods  back  (p).  The  notice  to  the  bailiff  does 
not  constitute  him  the  landlord's  agent  to  distrain :  but  in 
doing  so  he  acts  as  an  officer  of  the  court  pursuant  to  the 
statute  (5-).  It  seems  that  the  Interpleader  Act  applies  trt 
a  landlord's  claim  for  rent ;  and  tliat  where  the  landlord 
appears  upon  the  hearing  of  an  interpleader  summons  in  a 
county  court,  he  as  well  as  the  execution  creditor  and  the 
claimant,  has  a  right  of  appeal  (r). 

(c)    Under  Admiralty  Process. 

Notice  to  sheriff.  —  If  a  claim  for  rent  be  made  upon  goods 
seized  under  Admiralty  process,  the  judges  of  the  Probate, 
Divorce  and  Admiralty  Division  will  adjudicate  upon  the 
claim.  It  was  enacted  by  the  Admiralty  Court  Act,  1861 
(24  Vict.  c.  10),  s.  16,  as  follows :  —  "If  any  claim  shall  be 
made  to  any  goods  or  chattels  taken  in  execution 
under  any  *  process  of  the  High  Court  of  Admiralty,  [*498] 
or  in  respect  of  the  seizure  thereof,  or  any  act  or 
matter  connected  therewith,  or  in  respect  of  the  proceeds  or 
value  of  any  such  goods  or  chattels,  by  any  landlord  for  rent, 
or  by  any  person  not  being  the  party  against  whom  the  pro- 
cess has  issued,  the  registrar  of  the  said  court  may,  upon  ap- 
plication of  the  officer  charged  with  the  execution  of  the 
process,  whether  before  or  after  any  action  brought  against 
such  officer,  issue  a  summons  calling  before  the  said  court 
both  the  party  issuing  such  process  and  the  party  making 
the  claim,  and  thereupon  any  action  which  shall  have  been 
brought  in  any  of  her  Majesty's  superior  courts  of  record,  or 
in  any  local  or  inferior  court,  in  respect  of  such  claim,  seiz- 
ure, act  or  matter  as  aforesaid,  shall  be  stayed,  and  the  court 
in  which  such  action  shall  have  been  brought,  or  any  judge 
thereof,  on  proof  of  the  issue  of  such  summons,  and  that  the 

(p)  Beard  v.  Knight,  8    E.  &   B.  (r      Wilcoxon    v.    Searby,    In   re 

865;  27  L.  J.,  Q.  B.  359;  Foulger  v.  Foulger   v.  Taylor,  5    H.  &  N.  202; 

Taylor,   5   H.   &   N.   202;    White   v.  29  L.  J.,  Ex.  154;    Gage  v.  Collins, 

Binstead,  13  C.  B.  304.  supra. 

(</)  Gage  r.  Collins,  L.  R.,  2  C.  P. 
381;  3(3  L.  J.,  C.  P.  144. 

773 


*498  DISTRESS   FOB   RENT.  [Ch.  XI.  S.  13. 

goods  and  chattels  were  so  taken  in  execution,  may  order  the 
party  bringing  the  action  to  pa}'  the  costs  of  all  proceedings 
had  upon  the  action  after  issue  of  the  summons  out  of  the 
said  Admiralty  Court,  and  the  judge  of  the  said  Admiralty 
Court  shall  adjudicate  upon  the  claim,  and  make  such  order 
between  the  parties  in  respect  thereof  and  of  the  costs  of 
the  proceedings  as  to  him  shall  seem  fit,  and  such  order  shall 
be  enforced  in  like  manner  as  any  order  made  in  any  suit 
brought  in  the  said  court.  Where  any  such  claim  shall  be 
made  as  aforesaid  the  claimant  may  deposit  with  the  officer 
charged  with  the  execution  of  the  process  either  the  amount 
or  value  of  the  goods  claimed,  the  value  to  be  fixed  by 
appraisement  in  case  of  dispute,  to  be  by  the  officer  paid  into 
court  to  abide  the  decision  of  the  judge  upon  the  claim,  and 
the  sum  which  the  officer  shall  be  allowed  to  charge  as  costs 
for  keeping  possession  of  the  goods  until  such  decision  can 
be  obtained,  and  in  default  of  the  claimant  so  doing  the  offi- 
cer may  sell  the  goods  as  if  no  sucli  claim  had  been  made, 
and  shall  pay  into  court  the  proceeds  of  the  sale,  to  abide 
the  decision  of  the  judge."  And  by  the  Judicature  Act  of 
1873,  sect.  84,  matters  within  the  exclusive  cognizance  of  the 
High  Court  of  Admiralty  before  the  passing  of  that  act  are 
assigned  to  the  Probate,  Divorce  and  Admiralty  Division  of 
the  High  Court  of  Justice. 

774 


*  CHAPTER  XII. 


[*499] 


REMEDIES  FOR  WRONGFUL  DISTRESS. 


8BCT. 

PAGE 

1.    Recovery  of  the  Goods  dis- 

trained by  Replevin     . 

499 

(a)  Nature  of  Replevin    .     . 

499 

(b)  Mode  of  Proceeding  .     . 

501 

(c)  Replevin  in  County  Court 

509 

(d)  Replevin  in  High  Court . 

513 

(e)  Removal  to  High  Court 

by  Certiorari  .... 

518 

(f)  Proceedings  on  Replevin 

Bond 

520 

(g)  Recovery  of  Deposit  in 

lieu  of  Bond  .... 

521 

SECT.  PAGE 

2.    Recovery    of    Damages    by 

Action 521 

(a)  Summary     Remedy      in 

Metropolis       .... 

(b)  Action  for  Double  Dam- 

ages (on  sale)      .     .     . 

(c)  Action  proper    .... 

Remedy  by  Proceedings  be- 
fore Justices  or  County 
Court  under  Agricul- 
tural Holdings  Act".     . 


522 


522 

522 


52G 


We  will  now  consider  the  remedies  which  the  law  pro- 
vides for  the  tenant  in  cases  where  the  distress  levied  by 
the  landlord  is  illegal,  irregular,  or  excessive. ^  The  pecu- 
liar remedy  by  the  act  of  the  party  termed  "  rescue,"  which 
is  only  available  before  impounding,  and,  therefoie,  of  little 
or  no  practical  value,  has  been  already  considered  (a). 


Sect.  1.  —  Replevin. 
(a)  Nature  of  a  Replevin^  and  in  what  Cases  applicable. 

Nature  of  a  replevin.  —  Replevin  is  a  remedy  for  the  owner 
of  goods  or  cattle  which  have  been  wrongfully  taken  under 
a  distress  for  rent  (5),  whereby  he  obtains  them  back  in  a 


(a)  Ante,  Ch.  XI.,  Sect.  10. 

(6)  Replevin  has  been  said  not  to 
be  confined  strictly  to  distresses,  but 
to  extend  to  all  wrongful  takings  of 
goods  or  cattle  ;  George  v.  Chambers, 
11  M.  &  W.  149 ;  7  Jur.  836  ;  Allen 


V.  Sharp,  2  Exch.  352;  17  L.  J.,  Ex. 
209;  Mellor  v.  Leather,  1  E.  &  B. 
619;  22  L.  J.,  M.  C.  76;  but  see 
Mennie  v.  Blake,  6  E.  &  B.  842 ;  25 
L.  J.,  Q.  B.  399.  It  applies  to 
distress  damage  feasant. 


1  See  ante,  ch.  11,  sec.  10,  (d),  note,  "Liability  for  illegal  distress.' 

775 


*500  REMEDIES   FOR    WRONGFUL  DISTRESS.         [Cii.  XII.  S.  1. 

summary  manner,  through  the  registrar  of  the  County  Court 
of  the  district  within  which  the  goods  or  cattle  were  taken, 
upon  giving  security  to  try  the  validity  of  the  distress  or  talcing^ 
in  an  action  of  replevin  to  be  forthwith  commenced 
[*500]  by  him  against  the  distrainer  *  and  prosecuted  with 
effect  (c),  and  without  delay  (c?),  either  in  the  County 
Court  or  in  the  High  Court,  and  to  return  the  goods  or  cattle, 
if  such  return  shall  be  awarded  (e). 

"When  replevin  lies.  —  The  essence  of  proceedings  in  re- 
plevin being,  that  the  tenant  enjoys  the  subject-matter  of  the 
distress  in  specie  pending  the  trial  of  the  action,  it  is  mate- 
rial to  consider  when  this  action  lies.  It  may  be  said  briefly 
that  replevin  lies  in  case  of  a  distress  which  is  wholly  illegal, 
and  not  merely  irregular  or  excessive.  Thus,  it  lies  where 
no  rent  is  due,  or  where  the  rent  Avas  tendered  in  time,  or 
where  goods  exempt  by  laAv  from  distress  are  seized  (with 
the  exceptions,  however,  of  animals  ferae  naturae  (/),  and 
perhaps  fixtures  (^)).  The  proceeding  consists  of  two 
distinct  parts,  viz.:  1.  The  replevy,  whereby  the  goods  or 
cattle  are  obtained  back ;  2.  The  subsequent  action  of 
replevin  to  try  the  legality  of  the  distress  or  taking.  But 
it  is  in  effect  no  remedy  where  the  distress  was  originally 
lawful  (A) ;  unless  it  has  become  illegal  by  a  sufficient 
tender  of  the  rent  or  damage  done,  with  expenses,  being 
made  before  the  impounding,  and  a  subsequent  wrongful 
detention  which  in  effect  and  construction  of  law  amounts 
to  a  new  wrongful  taking  (/) :  and,  therefore,  the  fact  ahme 
that  the   distress  is  for  more   tlian   the   sum  due,  does  not 


(r)  This  is  to  say  "with  success";  dcliiv,  sec  Gent  r.  Cutts,  11  Q.  B.  288-, 

Morgan     v.     Griffith,    7     Mod.    080;  Harrison  r.  Wanlle,  5  H.  &  Add.  14(5; 

Tumor  v.  Turner,  2  Brod.  &  B.  107  ;  Axford  i-.  Berrett,  4  Bint?.  58G. 
Berreau  v.   Bcavan,  5   B.  &    C.  284,  (p)  10  &  20  Vict.  c.  108,  ss.  G3-71 ; 

.300;  Jackson  i-.  Hanson,  8  M.  &  W.  2:5  &  24  Vict.  c.  120,  s.  22. 
477;  1   Dowl.,  N.  S.  09;    TunniclilTe  {/»)  Bac.  Abr.  tit.  Replevin  (F.). 

V.  Wiimot,  2  C.  &  K.  620;  Tuminons  (7)  Niblet  v.  Smitli,  4  T.  R.  504. 

V.  Ogle,  0  E.  &  B.  571  ;  25  L.  J.,  (i.  B.  (h)  See  per  Lord  Campbell,  C.  J., 

403.  in  Johnson  v.  Upham,  28  L.  J.,  Q.  B. 

(d)    That    is    to   say,    with    "  due  250. 
diligence  " ;  as  to    what  is   improfjcr  (/)  Ante,  Ch.  XI. 

776 


Cii.  XII.  S.  1.]  REPLEVIN.  *501 

entitle  the  tenant  to  replevy' the  goods,  but  only  to  bring 
an  action  for  an  excessive  distress  (/r). 

Replevin  only  an  optional  remedy.  —  Replevin  is  only  an 
optional  remedy  ;  the  tenant  may,  in  any  case  where  replevin 
lies,  waive  his  right  to  replevy,  and  bring  his  action  for 
damages  instead. 

Within  Twhat  time  must  be  made.  —  The  tenant  may  avail 
liimself  of  the  right  to  replevy  at  any  time,  notwithstanding 
the  goods  have  been  removed  after  five  days,  and  appraised, 
so  long  as  they  remain  unsold  (?). 

Notice,  &o.,  before  action  unnecessary.  —  The  stat.  24  Geo. 
2,  c.  44,  s.  6,  which  enacts  that  no  action  shall  be  brought 
against  a  constable  acting  in  obedience  to  the  warrant  of  a 
justice  of  the  peace  till  demand  of  a  copy  of  the  warrant 
and  refusal  thereof ;  and  statutes  2  &  3  Vict.  c.  93,  s.  8,  and 
1  &  2  Will.  4,  c.  41,  s.  19,  which  require  a  calendar  month's 
notice  of  action  to  be  given  to  any  constable  for  anything 
done  in  the  execution  of  his  office,  and  similar  protecting 
statutes,  do  not  apply  to  actions  of  replevin  (m). 

*  Replevy  made  per  incuriam.  —  If  the  replevy  be  [*501] 
made  per  incuriam  or  mistake  of  the  officer,  it  by  no 
means  follows  that  the  subsequent  action  of  replevin  cannot 
be  maintained  (w).  Quod  fieri  non  debet,  factmn  valet.  The 
remedy  for  such  mistake  is  by  a  summary  application  to  the 
court  to  set  aside  the  replevy,  or  to  attach  the  officer,  or 
the  party,  or  both,  for  the  contempt  (o).  Where  goods  taken 
under  a  warrant  of  distress  granted  by  Commissioners  of 
Sewers  were  replevied,  and  the  proceedings  removed  into 
the  King's  Bench,  that  court  refused  to  quash  them  on  a 
summary  application,  leaving  the  defendant  in  replevin  to 
put    his    objection    in    a    more    formal    manner    upon    the 

{k)  See  \  Chit.  PI.  184  ^Tth  ed.).  (n)  Allen  i'.  Sharp,  2  Exch.  361 ; 

(0  Jacob  V.   King,  5  Taunt.  451 ;  17  L.  J.,  Ex.  209. 
Griffiths  ('.  Stephens,  1  Chit.  R.  196.  (o)  As  to  attachment,  see  Rex  v. 

(?n)  Fletcher  v.  Wilkins,  6  East,  Burchet,  8  Mod.  209;  Willes,673,  n.,• 
283 ;  Jones  r.  Johnson,  6  Exch.  1.S8;  Rex  r.  ISIonkhouse,  2  Stra.  1184; 
20  L.  J.,  M.  C.  11  ;  Gay  v.  Mattliews,  Rex  v.  Oliver,  Banbury,  14;  Bull.  N. 
32  L.  ,T.,  M.  C.  58  ;  in  Ex.  Ch.,  4  B.&  S.  P.  53;  and  as  to  setting  aside  the 
425.  See,  however,  Mellorc.  Leather,  proceedings,  Rhymney  R.  Co.  j;. 
1  E.  &  B.  619;  22  L.  J.,  M.  C.  76,  as  Price,  16  L.  T.  394. 
to  the  protection  of  constables. 

777 


*502  REMEDIES   FOK    WliONGFTJL   DISTRESvS.       [Ch.  XII.  S.  I. 

record  (|>).  Where  a  replevin  cannot  legally  be  made, 
the  registrar  should  on  that  ground  refuse  to  act,  but  an 
action  will  lie  against  him  for  refusing  to  replevy  in  a 
proper  case  (</). 

(b)  Mode  of  Proceeding  to  Replevy. 

Preliminary  matters   to  be   considered.  —  Before  proceeding 
to  replevy  the  following  points  should  be  considered,  viz. : 

1.  Whether  the  cUstress  or  taking  was  wholly  illegal,  and  not 
merely  excessive  or  irregular,  or  taken  for  the  wrong  cause 
(as  stated  in  the  notice  of  distress)  instead  of  the  right  one. 

2.  Whether  it  is  practicable  and  expedient  to  make  a  tender 
of  the  rent  or  damage,  with  costs  of  the  distress,  which 
tender  cannot  be  made  after  the  impounding.  3.  Whether, 
considering  the  value  of  the  goods  taken  with  reference  to 
the  amount  of  the  rent  or  damage  claimed,  it  is  worth  while 
to  replevy,  seeing  that  whatever  may  be  the  value  of  the 
goods,  secui-ity  must  be  given  for  such  an  amount  as  the 
registrar  shall  deem  sufficient  to  cover  the  alleged  rent  or 
damage  in  respect  of  which  the  distress  was  taken,  and  the 
probable  costs  of  the  cause  in  the  County  Court,  or  in  the 
High  Court,  as  the  case  may  be.  4.  Whether  the  action  of 
replevin  should  be  commenced  and  prosecuted  in  the  County 
Court  for  the  district  within  which  the  distress  was  taken,  or 
in  the  High  Court,  or  in  the  court  of  the  lord  of  any  honor 
or  franchise  having  exclusive  jurisdiction  to  grant  replev- 
ies (r).  It  is  not  optional  to  bring  replevin  in  the  High 
Court  unless  the  rent  or  damage  claimed  exceeds  20Z.,  or  the 
title  to  some  corporeal  or  incorporeal  hereditament,  or  to 
some  toll,  market,  fair  or  franchise  is  in  question.  In  all 
other  cases  the  action  must  be  brouglit  in  the  County  Court. 
Even  wliore  any  title  is  in  question  the  action  maji  be  l)i()nght 

in  the  County  Court,  subject  to  the  power  of  removal 

[*502]  by  *the  defendant  under  19  &  20  Vict.  c.  108,  s. 

67  (h)  ;   and  to   an   appeal   were    the   rent   claimed 

(/))  Pritchard  v.  Stephens,  6  T.  R.  (r)  Mounscy  v.  Dawson,  (J  A.  &.  E. 

522.  752. 

(7)  Sabourin  v.  Mursliall,  3  B.  &  (s)  Re  Fordliam  r.  Ackers,  4  B.  & 

Ad.  440.  S.  578;    33  L.  J.,  Q.  B.  G7 ;    b.  c, 

778 


Cii.  XII.  S.  1]  REPLEVIN.  *502 

exceeds  201.  (^).  5,  By  whom  the  replevy  shoukl  be  made 
and  the  action  brought.  It  should  be  brought  by  the  party 
whose  goods  have  been  distrained  (y/) ;  i.e.  by  him  who  has 
the  property,  absolute  or  qualified,  in  the  goods  (a;),  a  mere 
possessory  right  having  been  said  to  be  not  sufficient  (?/).  It 
was,  in  the  case  of  Fenton  v.  Logan  (2),  apparently  assumed 
that  replevin  would  lie  at  the  instance  of  the  real  owner  of 
the  goods  seized,  although  he  was  a  person  other  than  th<; 
tenant  distrained  upon ;  and  if  the  point,  whether  replevin 
was  a  remedy  open  to  others  than  tenants,  were  distinctly 
raised,  it  would  be  probably  so  decided.  If  goods  of  A.  and 
B.,  the  separate  property  of  each,  be  unlawfully  distrained, 
they  cannot  join  in  a  replevin,  but  each  may  replevy  his  own 
goods  («).  Joint  owners  and  tenants  in  common  may  and 
should  join  in  a  replevin  (i).  Coparceners  are  joint  own- 
ers (^).  Executors  may  maintain  re[)levin  for  goods  of  their 
testator  wrongfully  taken  in  this  lifetime  (c-).  If  the  goods 
of  a  feme  sole  be  taken,  and  she  afterwards  marries,  the  hus- 
band alone  may  replevy  (t?)  without  joining  his  wife,  and, 
indeed,  if  the  goods  are  taken  after  the  marriage,  sh(; 
ought  not  to  sue  either  alone  (e)  or  with  her  husband  (/). 
6.  Against  whom  the  proceedings  should  be  adopted.  It 
may  be  against  him  who  took  or  commanded  the  taking,  or 
both  (^).  The  landlord  or  person  who  caused  the  distress 
to  be  made  is  generally  best  able  to  pay  damages  and  costs ; 
but  to  fix  him  with  liability  his  authority  to  make  the  distress 

noni.    Reg.    v.    Gurdon,   12    W.    R.  (6)  Year  Bk.  3  Hen.  4,  16  a;  Co. 

201.  Lit.   145  b;  Bull.  N.   P.  53 ;  1  Chit. 

(0  This  was  done  in  White,  app.,  PI.  183  (7th  ed.)  ;  2  Selw.  N.  P.  1150 

Greenish,  resp.,  11  C.  B.,  N.  S.  209.  (IStii  ed.). 

(«)  19  &  20  Vict.  c.  108,  s.  64.  (c)  Bro.  Abr.  tit.  Replevin,  pi.  59; 

(x)   Com.  Dig.  tit.  Pleader  (3   K.  Arundell  v.  Trevill,  Sid.  82  ;  Bull.  N. 

1)  ;  Co.  Lit.  145  b;  Bro.  Repl.  fol.  8,  P.  53;  Gilb.  Repl.  156. 
20;  1  Chit.  PI.  182,  183  (7th  ed.)  ;  2  (rf)  Fitz.  N.   B.  69  k;  Gilb.  Repl. 

Selw.  N.  P.  1150  (13th  ed.).  156;  2  Selw.  N.  P.  1150  (13th  ed.). 

(i/)  Templeman  v.   Case,   10  Mod.  (e)  Clarke  v.  Davies,  7  Taunt.  72. 

25.     But  see  Fell  v.  Whitaker,  L.  R.,  (/)  Bern  (•.  Mattaire,  Cas.  Temp. 

7  Q.  B.  120,  and  post,  p.  525.  Hardw.  119;  2  Selw.  N.  P.  1150  (13th 

(z)  9  Bing.  676.  ed.). 

(a)  Co.  Lit.  145  b;  Bro.   Abr.  tit.  (r/)  Com.  Dig.  tit.  Pleader  (3  K.  1)  ; 

Replevin,  PI.  12;  Gilb.  Repl.  152;  2  2  Roll.   Abr.  431,  I.   5;    Gilb.  Repl. 

Selw.  N.  P.  1150  (13th  ed.).  152  ;  Jones  v.  Johnson,  5  Exch.  862. 

779 


*503  REMEDIES   FOR    WRONGFUL   DISTRESS.       [Ch.  XII.  S.  1. 

must  be  proved  (A)  ;  and  if  only  some  of  the  goods  or  cattle 
were  illegally  taken  (being  privileged  from  distress),  and  the 
replevin  is  confhied  to  them,  it  must  be  proved  not  merely 
that  he  signed  a  distress  warrant  in  the  usual  form,  but  that 
he  authorized  the  taking  of  those  goods  or  cattle  which  were 
so  ilL\o-ally  taken :  or  that,  knowing  what  had  been  done  in 
his  behalf,  he  ratitied  and  adopted  such  illegal  act  (i).  He 
should  always  be  made  a  defendant  where  the  plaintiff  intends 

to  pay  money  into  court  (^).  The  agent  who  signed 
[*503]  the  distress  warrant,  or  who  directed  *  the  distress, 

may  be  made  a  defendant ;  as  may  also  the  broker  (^), 
But  although  they  may  be  made  defendants,  it  does  not  follow 
that  they  should  be,  in  any  particular  case :  that  is  matter  of 
discretion,  with  reference  to  the  acts  done,  and  other  inci- 
dental facts,  including  the  evidence  and  the  pecuniary  ability 
of  the  parties.  The  pound-keeper,  it  seems,  is  not  liable  (in'). 
It  has  been  said  that  replevin  cannot  be  maintained  against 
a  corporation  aggregate,  but  only  against  their  bailiff  or 
agent  (w),  but  this  seems  inconsistent  with  several  recent 
cases  (o).  It  has  been  long  since  decided  that  a  corporation 
may  appoint  a  bailiff  to  distrain,  without  a  Avarrant  under 
their  common  seal  (  p)  ;  and  there  seems  no  reason  why  they 
should  not  be  responsible  for  acts  so  authorized ;  for  other- 
wise they  might,  by  appointing  a  pauper  to  act  for  them, 
avoid  all  liability  direct  or  indirect.  7.  It  should  further  be 
considered  whether  all  the  goods  or  cattle  should  be  rej^levied, 
or  only  some  of  tliem,  on  the  ground  that  they  were  legally 
exemi)t  from  the  distress  (^).     The  value  of  such  goods  or 


(li)  Ante,  4^)9.  ()i)   1    Kyii   on   Corporations,  223; 

(i)  Ante,  459.  Bjic.  Abr.  tit.  Corporations  (E.  2). 

(/■)  The  C.  L.   P.   Act,   1800,  23  &  (o)  Sec  Eastern  Counties  K.  Co.  v. 

24  Vict.  c.  12(5,  8.  23,  wliich  specially  Broom  (in  error),  (5  Excli.  314,  which 

allowed    payment    into    Court    l>y    a  decides    that  trespass   lies   ajxainst  .a 

plaintiff   in   replevin,   is  repealed  hy  corporation  aij^rcfjate  for  an  act  done 

the  Statute   Law    Revision  and  Civil  by  their  ajient  within  the  scojie  of  Ins 

Procedure  Act,  1883,  40  &  47  Vict.  c.  authority;  and  see  Green  v.  London 

49,  apparently  beinjj  superseded  by  General  Omnibus  Co..  7  C.  TV.  \.  S. 

K.  S.  C.  Order  XXII.  rule  9.  290;  29  L.  J.,  C.  I',  b!. 

(/)  Gilb.  Kcpl.  ir)2.  (}))  Gary  v.  Matthew.s, cited  1  Salk. 

(m)  Badkin  v.  Powell,  2  Cowp.  470.  191  ;  (j  Vin.  Abr.  287. 

(7)  Anil',  4:15. 

7S0 


Cii.  XII.  S.  1.]  REPLEVIN.  *504 

cattle  need  not  be  ascertained,  for  whatever  may  be  tlieir 
value  (whether  more  or  less  than  the  rent  or  damage 
claimed),  the  security  must  be  for  such  an  amount  as  Llie 
registrar  of  the  County  Court  shall  deem  sufficient  to  cover 
the  alleged  rent  or  damage  in  respect  of  which  the  distress 
was  made  and  the  probable  costs  of  the  cause  in  the  County 
Court,  or  in  the  High  Court,  as  the  case  may  be  (r),  and  does 
not,  as  formerly,  depend  upon  the  value  of  the  goods  dis- 
trained, which  had  to  be  ascertained  upon  the  oath  of  some 
competent  person  (s).  Whether  a  bond  with  two  sufficient 
sureties  shall  be  given  pursuant  to  19  &  20  Yict.  c.  108,  ss. 
65,  66  (^),  and  who  are  competent  and  willing  to  become 
such  sureties ;  or  whether  a  deposit,  with  a  memorandum, 
shall  be  made  pursuant  to  sect.  71  Qa'). 

Replevy  made  by  registrar  of  County  Court.  —  Formerly  re- 
plevies were  made  by  the  sheriff  of  the  county  within  which 
the  distress  was  taken,  or  by  his  under-sheriff  or  deputy  (x)  ; 
and  the  sheriff  of  each  county  was  bound  to  appoint  four 
deputies  at  least,  dwelling  not  above  twelve  miles  from  each 
other,  for  the  purpose  of  making  replevies  (//).  But 
by  19  &  20  Vict.  c.  108,  s.  63,  *'^tlie  powers  and  [*504] 
responsibilities  of  the  sheriff  with  respect  to  replevin 
bonds  and  replevins  shall  henceforth  cease  ;  and  the  registrar 
of  the  County  Court  of  the  district  in  wdiich  any  distress  sub- 
ject to  replevin  shall  he  tahen  shall  be  empowered,  subject  to 
the  regulations  hereinafter  contained,  to  approve  of  replevin 
bonds,  and  to  grant  replevins,  and  to  issue  all  necessary  pro- 
cess in  relation  thereto,  and  such  process  shall  be  executed 
by  the  high  bailiff." 

Replevin  to  be  granted  on  security  given.  —  By  sect.  64, 
"such  registrar  shall,  at  the  instance  of  the  party  whose 
goods  shall  have  been  distrained  (2),  cause  the  same  to  be 
replevied  to  such  party,  on  his  giving  one  or  other  of  such 


(r)  19  &  20  Vict.  c.  108,  ss.  65,  G6,  {x)  52  Hen.  3,  c.  21 ;  2  Inst.  138. 

71.  (//)    1  P.    &   M.   c.    12,   s.  3;  see 

(s)  See  11  Geo.  2,  c.  19,  s.  28,  Mid-  Taulkner  v.  Johnson,  11   M.   &   W. 

dleton  V.  Bryan,  3  M.  &  S.  155.  581 ;  Plumer  v.  Brisco,  11  Q.  B.  46. 

(t)  Post,  504.  (z)  A  replevin  c:\n  Lc  liad  only  by 

(u)  Post,  506.  or  on  behalf  of  the  actual  or  construe- 

781 


*oOo  REMEDIES   FOR    WRONGFUL   DISTRESS.       [Ch.  XII.  S.  1. 

securities  as  are  mentioned  in  the  next  two  succeeding  sec- 
tions."    (See  below.) 

It  may  be  here  stated  that  by  23  &  24  Vict.  c.  126,  s.  22, 
the  provisions  of  19  &  20  Vict.  c.  108,  "which  relate  to 
replevin,  shall  be  deemed  and  taken  to  apply  to  all  cases  of 
replevin,  in  like  manner  as  to  cases  of  replevin  of  goods  dis- 
trained for  rent  or  damage  feasant." 

The  action  of  replevin  is  prima  facie  to  be  brought  in  the 
County  Court,  but  under  certain  restrictions  it  may  be 
brought  also  in  the  High  Court  of  Justice. 

Replevins  in  high  court.  Conditions  of  security.  —  By  19  & 
20  Vict.  c.  108,  s.  65,  "  an  action  of  replevin  may  be  com- 
menced in  any  superior  court  in  the  form  applicable  to  per- 
sonal actions  therein,  and  such  court  shall  have  power  to 
hear  and  determine  the  same ;  and  if  the  replevisor  shall 
wish  to  commence  proceedings  in  any  superior  court,  he 
shall,  at  the  time  of  replevying,  give  security,  to  be  approved 
of  by  the  registrar,  for  such  amount  as  such  registrar  shall 
deem  sufficient  to  cover  the  alleged  rent  or  damage  in  respect 
of  which  the  distress  shall  have  been  made,  and  the  probable 
costs  of  the  cause  in  a  superior  court,  conditioned  to  com- 
mence an  action  of  replevin  against  the  distrainer  in  such 
superior  court  as  shall  be  named  in  the  security,  UHthin  one 
week  from  the  date  tliereof,  and  to  prosecute  such  action  with 
effect  (a)  and  without  delay  (/>) ;  and,  unless  judgment 
therein  be  obtained  by  default,  to  prove  before  such  superioi- 
court  that  he  had  good  ground  for  believing  either  that  the 
title  to  some  corporeal  or  incorporeal  hereditament,  or  to 
some  toll,  market,  fair  or  franchise  was  in  question,  or  that 
such  rent  or  damage  exceeded  twenty  j^oundx^  and  to  make 
return  of  the  goods,  if  a  return  thereof  shall  1h'  adjudged  "  (f)- 

Replevin  in  County  Court.    Conditions  of  security.  —  By  sect. 

66,  "it"  the  re})levisi)r  shall    wisli   to  commence  pro- 

[*505]   ccedings  *  in   a  County  Court,  he  shall  at  the  time 

of  replevying  give  security,  to  be  approved  of  by  the 

tive  owner  of  tlie  {joods ;  not  by  one  (6)  Ante,  500  (rf). 

who    merely    has    tlie   possession    of  {<■)  See   Form  of  Bond,   Appendix 

them   (without  more)  ;  «H^f',  f)02 ;  but  E.,  Sect.  1,  No.  5;  of  Meinoninduin 

see  Fell  i'.  Wiiitaker,  post,  G'if).  of  Deposit  in  lieu  of  Bond,  Id.,  No.  0. 
(n)  I.e.,  with  success;  ante,  f)(IO  (c). 

782 


Cn.  XII.  S.  1.]  REPLEVIN.  *505 

registrar,  for  such  an  amount  as  such  registrar  shall  deem 
sufficient  to  cover  the  alleged  rent  or  damage  in  respect  f)f 
which  the  distress  shall  have  been  made,  and  the  probable 
costs  of  the  cause  in  the  County  Court,  conditioned  to  com- 
mence a]i  action  of  replevin  against  the  distrainer  in  the 
County  Court  of  the  district  in  which  the  distress  shall  have 
been  taken,  within  one  month  (d)  from  the  date  of  the  secur- 
ity, and  to  prosecute  such  action  with  effect  (e)  and  without 
delay  (/),  and  to  make  return  of  the  goods,  if  a  return 
thereof  shall  be  adjudged"  (^). 

Removal  of  replevins  into  high  court  by  certiorari.  —  By 
sect.  67,  "  any  action  of  replevin  brought  in  a  County  Court 
shall  be  removed  into  any  superior  court  by  writ  of  certiorari, 
if  the  defendant  shall  apply  to  such  superior  court  or  to  a 
judge  there  for  such  writ,  and  shall  give  security,  to  be 
approved  of  by  the  master  of  such  superior  court,  for  such 
amount,  not  exceeding  one  hundred  and  fifty  pounds,  as  such 
master  sliall  think  fit,  conditioned  to  defend  such  action  with 
effect  (It) ;  and  unless  the  replevisor  shall  discontinue  or 
shall  not  prosecute  such  action,  or  become  nonsuit  therein, 
to  prove  before  such  superior  court  that  the  defendant  had 
good  ground  for  believing,  either  that  the  title  to  some  cor- 
poreal or  incorporeal  hereditament,  or  to  some  toll,  market, 
fair  or  franchise  was  in  question,  or  that  the  rent  or  damage 
in  respect  of  which  the  distress  shall  have  been  taken  ex- 
ceeded tioenty  jiounds ;  and  every  such  superior  court  shall 
have  power  to  determine  the  samei  action  "  («'). 

Security  by  bond.  —  By  sect.  70,  ''  where  by  this  act,  or 
any  act  relating  to  the  County  Courts,  a  party  is  required  to 
give  security,  such  security  shall  be  at  the  cost  of  the  party 
giving  it,  and  in  the  form  of  a  bond  (A;),  wdth  sureties,  to 
the  other  party  or  intended  party  in  the  action  or  proceed- 
ing :  provided  always,  that  the  court  in  which  any  action  on 

(J)  i.v.,   one    calendar   month  ;    13  (Ji)  i.e.,  with  success  ;  Tunimons  v. 

Vict.  c.  21,  s.  4.  Ogle,  G  E.  &  B.  571 ;  ante,  500  (c). 

(e)  With  success  ;  ante,  500  (c).  (t)  See   Form    of  Bond,  Appendix 

(/)  ^n^e,  500  ((/).  E.,  Sect.  3,   (b)  4;  .Aleniorandimi  of 

((/)  See  Form  of   Bond,  Appendix  Deposit  in  lieu  of  Bond,  Id.,  No.  5. 

E,,  Sect.  1,  No.  7 ;  of  Memorandum  (A)  See  Forms. 

of  Deposit  in  lieu  of  Bond,  Id.,  No.  8. 

783 


*506  REMEDIES   FOR    WRONGFUL  DISTRESS.       [Ch.  XII.  S.  1. 

the  bond  shall  be  brought,  may,  by  rule  or  order,  give  such 
relief  to  the  obligors  as  may  be  just,  and  such  rule  or  order 
shall  have  the  effect  of  a  defeasance  of  such  bond."' 

Joint-stock  companies  and  infants  may  give  such  bonds.  —  It 
seems  that  a  bond  of  the  above  nature  may  be  entered  into 
by  a  joint-stock  company,  or  even  by  an  infant,  with  suffi- 
cient sureties,  and  that  the  registrar  cannot  refuse  to  receive 
such  bond,  on  the  ground  that  the  principal  obligor  is  dis- 
qualified to  execute  it ;  for  otherwise  such  parties  would  lose 
the  benefit  of  the  statute  (?),  and  be  thereby  deprived  of  the 

right  to  replevy. 
[*506]        *  Security  by  deposit.  —  By  sect.  71,  "  where  by  this 

act,  or  any  act  relating  to  the  County  Courts,  a  party 
is  required  to  give  security,  he  may  in  lieu  thereof  deposit 
with  the  registrar,  if  the  security  is  required  to  be  given  in  a 
County  Court,  or  with  a  master  of  the  superior  court  if  the 
security  is  required  to  be  given  in  such  court,  a  sum  equal  in 
amount  to  the  sum  for  which  he  would  be  required  to  give 
security,  together  with  a  memorandum  (m),  to  be  approved  of 
by  such  registrar  or  master,  and  to  be  signed  by  such  party, 
his  attorney  or  agent,  setting  forth  the  conditions  on  which 
such  money  is  deposited,  and  the  registrar  or  master  shall 
give  to  the  party  paying  a  written  acknowledgment  of  such 
payment;  and  the  judge  of  the  County  Court,  when  the 
money  shall  have  been  deposited  in  such  court,  or  a  judge  of 
the  superior  court,  when  the  money  shall  have  been  deposited 
in  a  superior  court,  may,  on  the  same  evidence  as  would  be 
required  to  enforce  or  avoid  such  bond,  as  in  the  last  preced- 
ing section  is  mentioned,  order  such  sum  so  deposited  to  be 
paid  out  to  such  party  or  parties  as  to  him  shall  seem  just." 

Notices  of  proposed  sureties.  —  By  the  County  Court  Rules 
of  1875,  Order  XXX.,  it  is  provided  that,  "in  all  cases  where 
a  party  proposes  to  give  a  bond  by  way  of  security,  he  shall 
serve  by  post,  or  otherwise,  on  the  opposite  party  and  the 
registrar,  at  his  office,  notice  of  the  proposed  sureties,  accord- 

(/)  Sec  Young  v.  Broniptoii,  Cliat-  (;«)  See  Form,  Appendix  E.,  Sect, 

liatn  and  OillinKliam  Wati-rworks  (lo.,       1,  No.  8. 
1  B.&  S.  f)75;  .31  L..T.,  Q.  B.  14  ;  and 
dicta  tlicrc'in. 

784 


Cu.  XII.  S.  1.]  REPLEVIN.  *507 

ing  to  the  form  in  the  schedule  {n) ;  and  the  registrar  shall 
forthwith  give  notice  to  both  parties  of  the  day  and  hour  on 
which  he  proposes  that  the  bond  shall  be  executed,  and  shall 
state  in  the  notice  to  the  obligee  that  should  he  have  any 
valid  objection  to  make  to  the  sureties,  or  either  of  them, 
that  it  nnist  then  be  made  "  (r.  1)  (o). 

Affidavit  by  sureties.  —  "  The  sureties  shall  make  an  affida- 
vit of  their  sufficiency  according  to  the  form  in  the  sched- 
ule (^),  unless  the  opposite  party  shall  dispense  with  such 
affidavit "  (r.  2). 

Bond,  how  executed.  —  "  The  bond  shall  be  executed  in  the 
presence  of  the  judge  or  registrar,  or  a  commissioner  of  the 
Supreme  Court  of  Judicature  "  (r.  3). 

Notice  of  security  by  deposit.  —  "  Where  a  party  makes  a 
deposit  of  money  in  lieu  of  giving  a  bond,  he  shall  forth- 
with give  notice  to  the  opposite  party  by  post,  or  otherwise, 
of  such  deposits  having  being  made  "  (r.  4). 

Bond  to  be  deposited  with  registrar.  —  "  In  all  cases  where 
the  security  is  by  bond,  the  bond  shall  be  deposited  with  the 
registrar  until  the  action  be  finally  disposed  of"  (r.  5). 

"No  registrar,  deputy  registrar,  registrar's  clerk, 
bailiff,  broker,   or  *  other  office   of  the   court  shall   [*507] 
become  surety  in  any  case  where  by  the  practice  of 
the  court  security  is  required"  (r.  6). 

The  sureties  should  be  two  freeholders  or  housekeepers. 

The  opposite  party  should  make  inquiries  as  to  the  suffi- 
ciency of  the  proposed  sureties,  in  like  manner  as  where  bail 
is  put  in  in  a  superior  court ;  and  if  he  has  reason  to  think 
them  insufficient,  he  should  attend  before  the  registrar  at 
the  time  and  place  appointed,  and  object  to  them,  and,  if 
necessary,  examine  them  before  the  registrar,  who,  after 
hearing  all  parties,  will  decide  whether  or  not  the  sureties 
are  sufficient.  It  seems  that  the  registrar  is  not  liable  (as 
the  sheriff  formerly  was)  to  an  action  for  taking  insufficient 
sureties  on  a  replevy  (5-).      Therefore    the   distrainer  must, 

(n)  See  Form,  Id.,  Sect.  1,  Nos.  1  (p)  See  Form,  Appendix  E.,  Sect. 

&  2.  1,  No.  4. 

(0)  See  Form,  No.  301  in  Schedule  (7)  Pollock   &   Nicol,   C.  C   Prac. 

to  C.  C.  Rules.  (8th  ed.),  p.  21;  BuUen  &  L.  Pi.  2:]5 

785 


*50T  REMEDIES    FOR   WROJS'GFUL   DISTRESS.       [Cii.  XII.  S.  1. 

at  Ilia  peril,  avail  himself  of  this  opportunity  to  make  any 
objections  to  them. 

"Where  action  may  be  brought.  —  It  is  to  be  observed,  with 
reference  to  the  foregoing  enactments  and  rules,  that  all 
actions  of  replevin,  without  any  exception,  may  be  com- 
menced and  prosecuted  to  final  judgment  and  execution  in 
the  County  Court  of  the  district  within  which  the  distress 
was  taken,  whatever  may  be  the  amount  of  rent  or  damage 
claimed,  and  notwithstanding  the  title  to  some  corporeal  or 
incorppreal  hereditament,  or  to  some  toll,  market,  fair  oi' 
franchise  is  in  question  (?•).  In  many  cases  it  may  be  expe- 
dient for  the  replevisor  to  sue  in  the  County  Court,  rathei- 
than  in  the  High  Court,  even  where  he  has  the  option  of 
suing  in  either  court,  and  especially  where  there  is  any  doubt 
whether  he  has  such  option ;  or  where  he  expects  to  fail  in 
the  action,  and  to  have  to  pay  all  the  costs  (which  are  much 
less  in  the  County  Court  than  in  the  High  Court). 

Costs  in  County  Court.  —  It  seems,  however,  that  if  success- 
ful in  the  County  Court  he  will  only  recover  costs  as  in  an 
action  for  less  than  qI.  (s),  notwithstanding  the  distress  was 
taken  for  more  than  20?.  (or  even  bOl.  or  500Z.),  and  the 
value  of  the  goods  replevied  was  more  than  sufficient  to 
satisfy  the  distress ;  or  however  important  or  difficult  may 
be  the  question  of  law  or  fact  involved,  the  damages  recover- 
able in  the  action  being  always  under  5?.  (f),  unless  indeed 
the  judge  award  costs  on  the  higher  scale,  under  s.  7  of  the 
County  Courts  (Costs  and  Salaries)  Act,  1882  (45  &  46 
Vict.  c.  57).  But  it  does  not  appear  to  be  finally  settled  in 
the  County  Courts  whether  the  value  of  the  goods  replevied 
ought  not  to  be  jjroved  and  taken  into  consideration,  as  part 
of  the  damages  recovered,  with  a  view  to  costs. 


(3r(l  cd.)  ;  sec,  however,  2  Chit.  Arcli.  (;)  Reg.  v.  Raines,  1  E.  &  B.  856; 

904  (l.'Jth  ed.)  ;  Young  v.  Brompton,  22  L.  J.,  Q.  B.  223 ;  Be  Fordham  /•. 

&c.,  Co.,  ante,  505  (/).     Even  the  sher-  Aekers,  4  B.  &  S.  578 ;  33  L.  J.,  Q.  B. 

iff  was  not  liable  where  the  sureties  07. 

were  apparently  responsible,  and  he  (.s)  As  to  what  costs  are  included 

exercised  a  reasonable    discretion  in  in  such  cases,  see  the  County  Court 

accepting  them  ;  Hindle  v.  Blades,  5  Acts  and  Rules. 

Taunt.  225  ;  .TelTery  v.  Bastard,  4  A.  (0  Tease  v.  Chaytor,  3  B.  &  S.  634. 

&  E.  823. 

786 


Cii.  XII.  S.  1.]  REPLEVIN.  *508 

When  action  should  be  in  High  Court.  —  Supposing  the 
distress  to  have  been  wholly  illegal,  the  replevisor 
*  cannot  safely  brhig  replevin  in  the  High  Court,  [*508] 
unless  he  can  prove  before  such  court  that  he  has 
good  ground  for  believing  either  that  the  title  to  some  cor- 
poreal or  incorporeal  hereditament,  or  to  some  toll,  market, 
fair  or  franchise  is  in  question,  or,  that  the  rent  or  damage 
in  respect  of  which  the  distress  was  made  exceeded  twenty 
pounds.  In  some  cases,  where  the  replevisor  has  good 
ground  for  so  believing,  he  may  not  be  able  to  prove  it  to 
the  satisfaction  of  the  High  Court  (m),  and  where  there  is 
any  doubt  on  this  point,  it  is  safer  to  sue  in  the  County 
Court.  In  many  cases,  where  the  replevisor  clearly  has  the 
option  to  sue  in  either  court,  it  may  be  expedient  for  him  to 
sue  in  the  County  Court  rather  than  in  the  High  Court. 
But  the  point  above  mentioned  as  to  costs  should  not  be 
overlooked,  as  it  may  make  a  great  difference. 

Replevisor  having  once  elected.  —  After  the  replevisor  has 
once  elected  to  sue  in  a  County  Court,  he  cannot  afterwards 
remove  the  action  into  the  High  Court.  He  might  have 
done  so  under  9  &  10  A^ict.  c.  95,  s.  121,  but  that  section  was 
repealed  by  19  &  20  Vict.  c.  108,  s.  2.  The  defendant  in 
replevin  cannot  safely  remove  the  action  from  the  County 
Court  into  the  High  Court  by  certiorari  unless  he  can  prove 
before  the  High  Court  that  he  has  good  ground  for  believing, 
either  that  the  title  to  some  corporeal  or  incorporeal  heredita- 
ment, or  to  some  toll,  market,  fair  or  franchise  is  in  question, 
or  that  the  rent  or  damage  in  respect  of  which  the  distress 
was  taken  exceeded  twenty  pounds  (ic) ;  and  even  in  such 
cases,  he  must  give  security  for  such  amount  not  exceeding 
150^.,  as  the  master  shall  think  fit,  conditioned  to  defend 
such  action  with  effect  (jf). 

Within  what  time  to  be  brought.  —  Where  the  action  of 
replevin  is  to  be  brought  in  the  High  Court,  it  must  be  com- 
menced by  a  writ  of  summons  in  the  usual  form  issued  out 

(u)  See   tlie   declaration   in    Tum-  (:r)  Tummons  v.  Ogle,  supra. 

mons  V.  Ogle,  G  E.  &  B.  571,  575  ;  26  (y)  Ante,    500    (c)  ;    Tummons    v. 

L.  J.,  Q.  B.  403.  Ogle,  supra. 

787 


*509  REMEDIES   FOE    WRONGFUL   DISTRESS.        [Ch.  XII.  S.  1. 

of  the  proper  court,  within  one  week  from  the  date  of  the 
replevin  bond  or  of  the  memorandum  of  deposit  (2;). 

Where  the  action  of  replevin  is  to  be  brought  in  the  County 
Court,  a  plaint  must  be  entered  there  within  one  calendar 
month  from  the  date  of  the  replevin  bond,  or  of  the  memo- 
randum of  deposit  (a). 

The  amount  of  the  security,  whether  by  bond  or  deposit, 
we  have  seen  does  not  depend  upon  the  value  of  the  cattle 
or  goods  to  be  replevied,  but  upon  the  amount  of  the  alleged 
rent  or  damage  and  the  probable  costs  of  the  cause  in  the 
High  Court  or  in  the  County  Coui-t,  as  the  case  may  be  (5). 
Probably    nearly  all  actions   of  replevin  would  be   com- 
menced and  determined  in  the  County  Courts,  but 
[*509]  for  the  objection  as  to  costs  before  *  mentioned  (c). 
That  however  is  so  serious  a  drawback,  as  to  render 
it  generally  unadvisable  for  the  plaintiff  to  bring  liis  action 
of  replevin  in  the  County  Court  where  he  can  possibly  avoid 
doing  so,  except  where  he  knows  that  he  is  in  the  wrong, 
and  will  have  to  pay  all  the  costs  of  the  action. 

Fees  payable  on  a  replevy.  —  The  fees  payable  at  the  County 
Court,  on  making  a  replevy,  are  as  follows  ((/) : 

£    s.     d. 

For  a  warrant  to  replevy 0     2     6 

For  a  replevin  bond,  where  the  alleged  rent 

or  damage  (e)  does  not  exceed  20^.     ...     0  10     6 
For  a  replevin  bond,  where  the  alleged  rent  or 

damage  (^)  exceeds  20/ 110 

For  notice  to  the  distrainer 0     2     6 

For  delivering  the  goods 110 

Together  with  6d.  a  mile  from  the  court 
house  to  the  place  where  the  goods  are. 
other  fees  in  replevin. 

For  making  a  return  to  a  writ  of  certiorari, 
6d.  in  the  pound,  so  long  as  total  does  not 
exceed  0  10     0 

(z)  m  &  20  Vict.  c.  108,  s.  55.  Sched.   (C),  as  altered  by  Treasury 

(u)  Id:  8.  CO.  Order  of   October,   1875;    Pollock  & 

(h)  Ante,  p.  503.  Nicol,  C.  C.  Prac.  2()-:]5  (8th  ed.). 

(r)  Ante,  p.  471.  .           (e)  The  words  "or  dainafje "  apply 

('/)  10    &   20    Vict.    c.    108,    s.  78,       to  a  claim  for  damage  feasant. 

788 


Ch.  XII.  S.  1.]  REIM.EVIN.  *510 

X      S.       d. 

For  costs  out  of  pocket  in  the  same      .      .      .     0  15     0 
Tlie  fees  payable  in  an  action  of  replevin  in 

the  County  Court  are  the  same  as  those  in 

other  actions  (/). 
In  replevins  all  poundage,  except  as  aforesaid, 

shall  be  estimated  on  the   amount  of   the 

alleged  rent  or  damage,  to  be  fixed  by  the 

registrar. 
The  poundage  is  Is.  in  the  pound ;  fractions 

of  a  pound  are  to  be  reckoned  as  one  pound. 
In  every   case  where  the  poundage   would,  but  for  this 

direction,  be  estimated  on  an  amount  exceeding  20^.,  it 

shall  be  estimated  at  20?.  only. 

(c)  Action  of  Replevin  in  the  County  Court. 

Replevin  without  writ  —  By  the  County  Court  Act  (9  & 
10  Vict.  c.  96),  s.  119,  "all  actions  of  replevin  in  cases  of 
distress  for  rent  in  arrear,  or  damage  feasant  (^),  which 
shall  be  brought  in  the  County  Court,  shall  be  brought  with- 
out writ  in  a  court  held  under  this  act." 

By  plaint.  —  By  sect.  120,  "  in  every  such  action  of 
replevin  the  plaint  shall  be  *  entered  in  the  court  [*  510] 
holden  under  this  act  for  the  district  wherein  the  dis- 
tress was  taken." 

Within  one  month.  —  By  19  &  20  Vict.  c.  108,  s.  66,  the 
action  must  be  brought  within  one  [calendar]  month  from 
the  date  of  the  securitj^  (whether  by  bond  or  memorandum 
of  deposit),  and  must  be  prosecuted  with  effect  (A),  and 
without  delay  (i). 

Entry  of  plaint.  —  The  action  is  commenced  by  entering  a 
plaint  in  the  usual  form  at  the  office  of  the  registrar  of  the 
County  Court,  which  is  generally  open  from  ten  till  four, 
except  on  Saturday  (Ic).,  when  the  office  closes  at  one 
o'clock.  • 

(/)  See   Pollock   &    Nicol,    C.    C.  (/O   i.e.,  with  success;   ante,   500 

Prac.  (c). 

(«7)  Extended   to   all   cases   of   re-  (/)  .In^c,  500  (rf). 

plevin  whatever,  by  23  &  24  Vict.  c.  (A)  When  Saturday  is  tlie  market- 

126,  s.  22.  day  of  the  town  in  which  the  court  is 

789 


*510  REMEDIES   FOR    WRONGFUL   DISTRESS.        [Ch.  XII.  S.  1. 

C.  C.  Rules,  Order  XXII.  —  By  the  County  Court  Rules  of 
1875,  Order  XXII.,  provision  is  made  for  the  regulation 
of  actions  of  replevin. 

No  other  cause  of  action  to  be  joined.  —  By  Rule  1  of 
that  order,  "•  in  an  action  of  replevin  no  other  cause  of  action 
shall  be  joined  in  the  summons "  (Z).  This  operates  as  a 
great  protection  to  landlords  and  their  bailiifs  (w),  and  also 
prevents  confusion  in  the  subsequent  proceedings,  wherein 
both  parties  are  considered  as  actors,  or  plaintiffs,  and  the 
judgment  differs  from  other  actions,  being  frequently  for 
the  defendant  with  damages  for  the  amount  of  the  rent,  or 
damage  done,  and  costs. 

Particulars  of  cattle  or  goods  to  be  replevied.  —  By  Rule 
2,  "  on  entering  a  plaint  in  replevin  the  plaintiff  must  specify 
and  describe  in  a  statement  of  particulars  the  cattle,  or  the 
several  goods  and  chattels  taken  and  of  the  distress,  or  other 
taking  of  which  he  complains  "  (w).  Such  particulars  must 
have  been  prepared  when  an  application  was  made  to  the 
registrar  to  replevy  (o)  because  the  particular  cattle  or  goods 
intended  to  be  replevied  are  mentioned  in  the  warrant  to  the 
bailiff  (i?). 

Fees.  —  The  registrar,  or  his  clerk,  enters  the  plaint  upon 
being  furnished  with  such  particulars,  and  upon  payment  of 
the  usual  fees  (p). 

Summons  to  defendant.  —  Upon  the  plaint  being  entered  a 
summons  issues  in  the  usual  form,  with  particulars  annexed, 
and  a  copy  is  served  on  the  defendant  by  the  bailiff,  in  like 
manner  as  in  other  actions  (^). 

Trial  and  judgment  in  a  summary  -wray.  —  By  Rule  3,  "  all 
actions  of  replevin  in  cases  of  distress  for  rent  in  arrear,  or 
for  damage  feasance  (r),  shall  be  tried  in  a  summary  way 
as  other  actions  in  the  courts  holden  under  the  authority  of 
the  County  Courts  Act,  1846,  and   the   judgment   therein, 

lioldcn,    some  otiier  (l;iy  is  fixed  by  («)  See  Fyrni,  App.  E.,  Sect.  3  (a) 

order  of  the  judj^o.  1,  poal. 

CO  See  per  Tollock,  C.  B..  in  Mun-  (o)  Ante,  503. 

!?ean  v.  Wlieatlcy,  (>  Excli.  8H ;  20  L.  {]>)  Td. 

J.,  Ex.  100.  (7)   PoUoek  &  Nicol,  C.  C.  Prac. 

Cm)  Ah  to  j)r:i(:tice  in   Hif^li  (%)urt,  205  C*^tli  cd.). 

see  613,  post.  (r)  See  23  &  24  Vict.  c.  120,  a.  22. 

790 


Ch.  XII.  S.  1.]  REPLEVIN.  *511 

in  ordinary  cases,  whether  for  phaintiff  or  defendant,  shall  be 
according  to  the  forms  set  forth  in  tlie  schedule"  («). 

*  Right  to  jury.  —  By  Order  XVI.,  Rule  3,  cases   [*511] 
of  replevin  may,  at  the  instance  of  either  party,  be 
tried  by  jury. 

Evidence  for  plaintiff.  —  The  plaintiff  must  prove  the  dis- 
tress or  taking  of  which  he  complains,  and  that  the  defendant 
was  the  person  who  took  it  or  caused  it  to  be  taken  (^)  ;  and 
that  the  defendant,  or  his  bailiff  or  agent,  took  or  had  the 
goods  or  cattle  at  the  place  within  the  jurisdiction  of  the 
court  mentioned  in  the  plaint.  In  replevin  the  alleged  place 
at  which  the  goods  were  taken  is  material  («)  ;  but  the  plaint 
may  be  amended  by  leave  of  the  judge,  whenever  it  can  be 
done  without  prejudice  to  the  real  question  intended  to  be 
tried  upon  the  merits  (a;).  The  plaintiff  must  prove  that  at 
the  time  of  the  taking  he  had  an  absolute  or  qualified  prop- 
erty in  the  cattle  or  goods  taken  (?/).  He  should  also  state 
the  amount  of  expenses  incurred  in  making  the  replevy ;  but 
where  no  evidence  on  that  point  is  given,  the  usual  amount 
will  be  awarded  if  the  plaintiff  obtain  the  verdict.  No 
special  damage  can  he  recovered  unless  it  be  expressly  men- 
tioned in  the  plaint,  and  sufficiently  proved.  The  plaintiff 
may  either  anticipate  by  evidence  and  negative  the  defend- 
ant's right  to  distrain,  or  he  may  reserve  his  evidence  on 
that  point  until  after  the  defendant  has  adduced  his  evi- 
dence («). 

Evidence  for  defendant.  —  The  defendant  may  contend  that 
the  plaintiff's  evidence  is  insufficient  on  some  material  point ; 
ex.  gr.  —  1.  That  he,  the  defendant,  was  the  person  who 
took  or  caused  to  be  taken  the  goods  or  cattle.  He  may 
dispute  or  deny  any  alleged  authority  given  by  him  for  the 
distress.  If  a  distress  warrant  be  put  in  evidence  by  or  on 
behalf  of  the  plaintiff,  the  landlord  may  contend  that  it 
was  not  signed  by  him,  nor  by  any  person  autliorized  to  sign 

(s)  See    Forms,  App.    E.,  Sect.   ?,  (.r)  19  &  20  Vict.  c.  108,  s.  57;  C. 

(a)  2,  3.  C.  Rules,  1875,  Order  XVII. ;  Pollock 

(0  Ante,  502.  &  Nicol,  C.  C.  Prac.  170-173  (8th  ed.). 

(m)     Potter    V.    North,     1     Wins.  (//)  Ante,  502. 

Saund.   347  ;    Potten    v.    Bradley,  2  (2)  See  evidence  in  reply,  post. 
Moo.  &  Pnvne,  78. 

791 


*.512  REMEDIES   FOR   WRONGFUL   DISTRESS.         [Cii.  XII.  S.  1. 

it  as  liis  agent  —  and  that  he  has  never  adopted  or  ratified  it 
in  any  manner.  He  may  contend  (if  the  fact  be  so)  that  the 
warrant  was  expressly  confined  to  the  goods  of  the  tenant, 
and  did  not  extend  to  the  goods  of  any  other  person  (where 
a  subtenant  or  lodger  or  third  person  sues)  —  or  that  the 
warrant  expressly  prohibited  the  taking  of  anything  not 
legally  liable  to  be  taken  as  a  distress  for  rent  (where  the 
replevin  is  for  cattle  or  goods  legally  exempt  from  such  a 
distress).  2.  That  he  neither  took  nor  had  the  goods  or 
cattle  at  the  place,  witliin  the  jurisdiction  of  the  court, 
mentioned  in  the  plaint ;  although  this  may  sometimes  be 
cured  by  an  amendment,  where  the  defendant  took  or 
had  the  goods  at  some  other  place  within  the  jurisdiction. 
3.  That  the  goods  or  cattle  were  not  at  the  time  of  the 
taking  the  property  of  the  plaintiff  (a).  Upon  any 
[*512]  of  *  these  points  he  may  produce  contradictory  evi- 
dence. He  may  also  prove  a  right  to  distrain,  either 
on  his  own  behalf  or  as  the  bailiff  or  agent  of  any  other 
person  (6),  for  all  or  any  part  of  the  rent  claimed  (c),  or  for 
damage  feasant,  or  for  any  other  lawful  cause.  He  need 
not  prove  a  right  to  distrain  for  the  particular  cause  alleged 
at  the  time  of  the  taking ;  because,  as  we  have  seen,  a  man 
may  distrain  for  one  thing  and  afterwards  avow  or  justify 
for  another  (c?).  It  is  therefore  sufficient  if  he  prove  a  legal 
right  to  distrain  for  any  cause  whatever.  The  amount  of 
rent  in  arrear,  and  the  value  of  goods  distrained,  should  also 
be  proved  (e). 

The  plaintiff  may  in  reply  dispute  and  disprove  anything 
attempted  to  be  proved  by  the  defendant  in  justification  of 
tlie  act  complained  of,  but  the  usual  practice  (where  the  lease 
or  agreement  is  duly  stamped)  is  for  the  plaintiff  to  produce 
all  his  evidence  in  the  first  instance,  rather  than  as  evidence 
in  reply. 

(a)  Ante,  502.  840;    22    L.    J.,    Ex.    16;    White    v. 

(6)  Sec  Trevillian  v.  Pine,  11  Mod.  (Jreenisii,  11   ( '.  B.,  N.  S.  209;  8  Jur., 

112;    1    WiiLs.  Saund.   :547  d,   note;  N.  S.  66;}. 
Trent  v.  Hunt,  9  Exch.  14 ;  22  L.  J.,  (r/)  Ante,  478. 

Ex.  318  ;  Snell  ,:  Finch,  13  C.  B.,  N.  (e)  See  Slieape  v.  Culpeper,  1  Lev. 

S.  651  ;  32  L..I.,  ('.  P.  117.  256;    .see.    too,    ('.    C.    Rule.s    1875. 

(c)  See  Cobb  v.  Bryan,  3  B.  &  P.  Order  XXII.,  Rule  4,  hifra. 
.348;    Roskrufro    r.    faddy,    7    Exch. 


Cn.  XII.  S.  1.]  REPLEVIN.  *513 

The  judgment  in  ordinary  cases.  —  The  judgment  in  re- 
plevin in  ordiuiuy  cases,  whether  for  plaintiff  or  defendant, 
is  in  the  usual  form,  as  in  other  actions.  Where  the  plaintiff 
succeeds  he  is  only  entitled  to  a  verdict  for  the  expenses  of 
the  replevy  (/)  as  proved  or  as  estimated  on  the  usual 
scale  (^).  His  solicitor's  charges  (if  any)  connected  with 
the  replevy  must  be  proved,  otherwise  nothing  will  be 
allowed  in  respect  of  them,  but  only  the  fees  paid  to  the 
registrar  (7i).  As  to  the  plaintiff's  costs  of  the  action  it  is 
provided  by  County  C'ourt  Rules,  Order  XXXVI.,  Rule  10, 
tliat  "  costs  in  actions  of  replevin  may,  where  the  fees  of 
court  are  paid  on  5^.  and  upwards,  be  allowed  to  solicitors 
upon  the  scale  applicable  to  actions  on  contract  where  the 
amount  claimed  exceeds  20?.  if  the  judge  shall  so  order." 
Unless  the  fees  be  so  paid  on  51.  or  upwards,  the  plaintiff  it 
seems  is  still  left  to  his  position  under  9  &  10  Vict.  c.  95,  s. 
91,  and  can  get  no  costs  of  professional  assistance,  as  the 
damages  will  be  always  or  nearly  always  under  51.  (i). 

Judgment  for  defendant  on  distress  for  rent.  —  By  Order 
XXII.,  Rule  4,  of  the  Rules  of  1875,  "  where  the  distress  is 
for  rent,  or  for  any  other  claim  for  which  a  distress  may  be 
lawfully  taken  and  the  defendant  succeeds  in  the  action,  if 
the  defendant  require,  the  court  shall,  if  the  action  be  tried 
without  a  jury,  and  the  jury  shall,  if  the  action  be  tried  with 
a  jury,  find  the  value  of  the  goods  distrained,  and  if  the  value 
be  less  than  the  amount  of  rent  or  otherwise  of  money  in 
arrear,  judgment  shall  be  given  for  the  amount  of 
such  value,  but  *  if  the  amount  of  the  rent  or  such  [*513] 
other  sum  of  money  in  arrear  be  less  than  the  value 
so  found,  judgment  shall  be  given  for  the  amount  of  such 
rent  or  other  sum  of  money,  and  may  be  enforced  in  the 
same  manner  as  any  other  judgment  of  the  court"  (/c). 

Execution.  —  A  judgment  for  either  party  in  replevin  is 
enforced  in  the  same  manner  as  in  other  actions  (/). 

(/)  Ante,  507.  (k)   See  Form  of  such  Judgment, 

Ig)  Ante,  507.  post.  Appendix  E.,  Sect.  3,  (a)  3. 

(h)  Ante,  507.  (/)  Pollock  and  Nico.i,  C.  C.   Prac. 

(i)    See,   however,  19  &  20  Vict.  p.  191  e<  se?.  (8th  ed.). 
c.  108,  s.  36,  and  45  &  46  Vict.  c.  57, 
s.  5. 

793 


*513  REMEDIES   FOE    WRONGFUL   DISTRESS.       [Ch.  XII.  S.  1. 

Appeal  on  question  of  law  to  High  Court.  —  Either  party 
to  an  action  of  rej)levin,  "where  tlie  amount  of  rent  or  dam- 
age exceeds  twenty  pounds  "  (w),  who  is  dissatisfied  with  the 
determination  or  tlirection  of  the  said  court,  "  in  point  of  hiw, 
or  upon  the  admission  or  rejection  of  any  evidence  "  (but  not 
on  any  question  of  fact},  may  appeal  from  the  same  to  any 
of  the  superior  courts  of  common  hxw  at  Westminster,  upon 
the  same  terms  and  conditions  and  in  like  manner  as  in  other 
actions  (?i).  The  party  desiring  to  appeal  must  within  ten 
days  after  the  decision  give  notice  of  appeal  to  the  other 
party  or  his  solicitor,  and  also  give  security,  to  be  approved 
by  the  registrar,  for  the  costs  of  the  appeal,  whatever  be  the 
event  of  the  apjjeal,  and  for  the  amount  of  the  judgment,  if 
he  be  the  defendant  (o).  The  court  cannot  entertain  any 
such  appeal  where  the  condition  of  giving  security  for  costs, 
«&c.,  imposed  by  13  »&  14  Vict.  c.  61,  s.  14,  has  not  been 
strictly  complied  with  (jt?).  The  appeal  may  be  either  in  the 
form  of  a  special  case  settled  and  transmitted  pursuant  to  13 
&  14  Vict.  c.  61,  s.  15,  or  by  motion  under  the  County 
Courts  Act,  1875,  s.  6  (5-),  in  which  case  the  motion  will  be 
for  a  rule  nisi  in  the  first  instance.  In  either  mode  of  appeal 
the  matter  will  be  heard  by  a  Divisional  Court  of  the  Queen's 
Bench  Division  of  the  High  Court  as  may  be  appointed,  at 
such  times  as  such  court  sit  to  hear  appeals  from  inferior 
courts  (/•).  When  the  appeal  is  by  motion,  the  application 
for  a  rule  nisi  may,  when  no  court  is  sitting  for  the  hearing 
of  such  matters,  be  made  to  a  judge  at  chambers  (f^). 


(m)  As  a  general  rule  the  right  to  Nicol,  C.    C.   Prac.  Chap.  XII.  (8th 

appeal  depends  on  the  amount  of  the  ed.).    In  White,  app.,  Greenisli,  resp., 

plaintiff'.s  claim  for  rent  and  not  on  11   C.    B.,  N.  S.  209,   the   ajjpellants 

the    anioimt    for  which  judgment  is  succeeded  on  appeal,  although  they 

given;   Pollock  r.  Nicol,  C.  C.   Prac.  were  entitled  to  distrain  for  only  one 

2;'')  (8th  ed.)  ;  Dreesman  *•.  Harris,  9  moiety  of  tlie  rent  for  which  the  dis- 

Exch.  485;  23  L.  J.,  Ex.  210;  Mayor  tress  was  taken. 

1-.  Burgess,  4  E.  &  B.  055 ;  24  L.  J.,  (o)  13  &  14  Vict.  c.  Ul,  s.  14. 

Q.  B.  G7;  Vallance  v.  Nash,  2  11.  &  (/>)  Norris  v.  Carrington,  10  C.  B., 

N.  712.  N.  S.  10. 

(h)  13  &  14  Vict.  c.  01,  8s.  14,  15,  (7)  38  &  39  Vict.  c.  53,  s.  0. 

16;  19  &20  Vict.  c.  108,  ss.  08,  71   C.  (r)  Jud.  Act,  1873,  s.  45;  U.  S.  C. 

C.  Rules,   Order  XXIX.  ;  Pollock  v.  Order  LIX.,  Kule  11. 

794 


Ch.  XII.  S.  1]  REPLEVIN.  *514 

(d)   Action  of  Replevin  commenced  in  the  High  Court. 

Jurisdiction  of  High  Court  in  replevin.  —  Jiy  11)  &  20  Vict, 
c.  108,  s.  65,  "iiu  action  of  replevin  may  be  commenced  in 
any  superior  court  in  the  form  ai)plicable  to  personal 
*  actions  therein,  and  such  court  shall  have  power  to  [*514] 
hear  and  determine  the  same ;  and  if  the  replevisor 
shall  wish  to  commence  proceedings  in  any  superior  court, 
he  shall,  at  the  time  of  replevying,  give  security,  to  be  ap- 
proved by  the  registrar,  for  such  an  amount  as  such  registrar 
shall  deem  sufficient  to  cover  the  alleged  rent  or  damage  in 
respect  of  which  the  distress  shall  have  been  made,  and  the 
probable  costs  of  the  cause  in  a  superior  court,  conditioned  to 
commence  an  action  of  replevin  against  the  distrainer  in  such 
superior  court  as  shall  l)e  named  in  the  security,  within  one 
week  from  the  date  thereof  and  to  prosecute  such  action  ivith 
effect  (.s),  and  without  delay  (f)  ;  and,  unless  judgment  therein 
be  obtained  by  default,  to  prove  before  such  superior  court 
that  he  had  good  ground  for  believing  either  that  the  title  to 
some  corporeal  or  incorporeal  hereditament,  or  to  some  toll, 
market,  fair  or  franchise  was  in  question,  or  that  such  rent  or 
damage  exceeded  twenty  pounds,  and  to  make  return  of  the 
goods,  if  a  return  thereof  shall  be  adjudged." 

Commencement  of  action.  —  The  action  must  be  commenced 
ivithin  one  week  from   the   date   of  such  security,  excluding* 
the  day  of  such  date.     And  it  must  be  prosecuted  "  with 
effect "  (w),  and  "  without  delay  "  (j;),    otherwise   the  bond 
or  deposit  will  l)e  forfeited. 

Writ  of  summons.  —  The  action  is  commenced  by  writ  of 
summons  as  in  other  cases,  which  will  be  indorsed  thus  — 
"  The  plaintiff's  claim  is  in  replevin  for  goods  wrongfully 
distrained"  ( //). 

Joinder  of  other  causes  of  action.  —  Under  the  Common  Law 
Procedure  Acts  no  other  cause  oi  action  could  be  joined 
with    replevin,   but    this    restriction   is   no   longer    in   force, 

(s)  i.e.,  with  success;  ante,  500.  (r)  ^1/;^',  .500  (r/). 

(i)  i.e.,  with    due    diligence;    ante,  (y)  R.  S.  C.  Appendix  A.,  Fart  II., 

500.  s.  i." 
(k)  Ante,  500  (c). 

795 


*515  REMEDIES   FOR   WRONGFUL  DISTRESS.       [Ch.  XII.  S.  1. 

altliough  separate  trials  may  be  ordered  if  the  court  or  a 
judge  think  the  various  causes  of  action  cannot  conveniently 
be  disposed  of  together  (2). 

Old  declaration.  —  The  declaration  used  to  be,  as  a  rule,  in 
a  technical  form,  which,  after  alleging  the  taking  of  the 
goods,  &c.,  in  a  certain  place  by  the  defendant,  went  on  to 
allege  that  he  "  unjustly  detained  the  same  against  sureties 
and  pledges,  until,  &c.,  whereby  the  plaintiff  has  sustained 
damage."  This  form  has  been  used  by  some  practitioners 
since  the  Judicature  Acts,  but  it  would  seem  very  doubtful 
whether  a  statement  of  claim  in  such  form  would  be  held 
good  on  a  summons  to  set  it  aside  or  amend  it,  as  the  state- 
ment ought  to  be  a  narrative  of  facts  and  not  a  mere  tech- 
nical form  (a). 

What  damages  recoverable.  —  The  only  damages  recoverable 
in  this  action  are  the  expenses  to  which  the  plaintiff  has  been 

put  to  replevy  liis  goods  (6). 
[*515]  *  Defences,  avowry  and  cognizance.  —  The  defences 
to  an  action  of  replevin  were  formerly  distinguished 
as  pleas,  avowries  and  cognizances,  the  two  latter  of  which 
terms  were  used  when  the  defendant  justified  the  taking  of 
the  goods,  &c.,  under  a  right  to  distrain,  and  also  claimed 
their  return  and  damages ;  the  former  being  used  when  the 
person  having  such  right  was  the  defendant,  the  latter  when 
the  defendant  was  bailiff  or  agent  of  the  person  having  the 
right.  These  terms  no  longer  exist  as  technicalities,  a  de- 
fence now  being  a  statement  of  facts,  and  the  defendant 
being  able  to  counter-claim  the  return  and  damages ;  but 
they  will  perhaps  be  still  occasionally  used  for  the  sake  of 
convenience. 

Former  law  of  avowry.  —  In  former  editions  of  this  work 
will  be  found  a  full  account  of  the  law,  statutory  and  other- 
wise, upon  the  subject  of  avowry  and  cognizance.  Such 
account  is  now  wholly  omitted,  inasmuch  as  the  statutes 
upon  the  subject,  13  Ed.  1,  c.  2  (West.  2),  21  Hen.  8,  c.  19, 

{:)  K.  S.  C.  Order  XVIII.,  Rule  1.         32  L.  J.,  M.  C.  121  ;  Connor  v.  »ent- 
(a)  See  R.  S.  C.  Order  XIX.,  Rule       ley,  1  Jebb  &  S.  240.      See,  too,  Wil- 
4.  kinson  on  Replevin,  85. 

(6)  I'ease  v.  Chaytor, '.]  H.  &  S.  O.'M  ; 

7  OF. 


Oil.  XII.  S.  1.]  REPLEVIN.  *516 

17  Car.  2,  c.  7,  and  11  Geo.  2,  c.  19,  ss.  22,  23,  are  now  re- 
i:)ealed  by  the  Civil  Procedure  Acts  Repeal  Act,  1879,  42  &; 
43  Vict.  c.  59,  and  the  Statute  Law  Revision  Act,  1881,  44 
&  45  Vict.  c.  59,  as  being  inconsistent  with  or  superseded  by 
the  practice  under  the  Rules  of  the  Supreme  Court  made  in 
pursuance  of  the  Judicature  Acts. 

These  rules  make  no  distinction  between  replevins  and 
ordinary  actions.  The  following  special  points,  however, 
should  still  be  mentioned :  — 

Judgment  for  plaintiff  ;  damages  recoverable.  ^  If  a  verdict 
be  found  for  the  plaintiff  he  is  not  entitled  to  damages  for 
the  value  of  the  goods  or  cattle  taken,  if  they  were  returned 
to  him  when  the  replevin  was  made  (as  is  usually  the  case)  ; 
nor  to  any  special  damage  for  their  wrongful  taking  or  de- 
tention ;  nor  to  any  compensation  for  the  insult,  annoyance 
and  inconvenience  to  the  plaintiff  and  his  family  by  the  dis- 
tress ;  nor  for  any  injury  thereby  occasioned  to  his  trade  or 
business,  credit  or  reputation ;  but  only  the  costs  and  ex- 
penses incurred  by  him  on  obtaining  the  replevy,  including 
the  fees  paid  at  the  County  Court  (c).  Now,  however,  as 
other  causes  of  action  may  be  joined  with  the  replevin  (c?), 
the  plaintiff  should  claim  further  damages  in  the  first  in- 
stance as  for  a  substantive  cause  of  action.  The  expenses  of 
the  replevin  were  formerly  21.  2s,  in  London  and  Middlesex, 
and  in  some  other  places,  and  2Z.  10s.  elsewhere,  being  the 
supposed  expense  of  the  replevin  bond ;  but  now  the  amount 
varies  according  to  the  sum  distrained  for.  And  if  the 
plaintiff  incurred  further  expenses  than  the  fees  paid  at  the 
County  Court  (his  own  solicitor's  charges,  for  instance)  he 
should  prove  them  and  also  the  fees  so  paid ;  otherwise 
the  lowest  usual  amount  will  be  awarded. 

*  If  the  goods  or  cattle  have  not  been  delivered  to  [*516] 
the  plaintiff  on  the  replevy,  he  is  entitled  to  recover 
the  value  of  the  goods  or  cattle  distrained  (t?),  and  also  his 
damages  for  their  detention,  &c.  (as  in  an  action  of  detinue), 
together  with  the  costs  and  expenses  of  the  replevy  ;   and 

(c)  Wilk.  Repl.  85  ;  Gibbs  v.  Oruik-  {d)  R.  S.  C.  Order  XVIII.,  Rule  1. 

shank,  L.  R.,  8  C.   P.  454;  and  51U,  (e)  2  Chit.  Arch.  1082  (11th  cd.). 

post. 

797 


*516  REMEDIES    FOR    WRONGFUL   DISTRESS.       [Ch.  XII.  S.  1. 

perhaps  also  any  special  damage  occasioned  by  the  distress, 
which  is  properly  alleged  in  the  declaration  and  sufficiently 
proved.  In  such  case  the  jury  should  by  their  verdict  sepa- 
rate the  damages,  and  find  so  much  for  the  value  of  the 
goods  or  cattle,  and  so  much  for  the  detention,  &c.  (/). 
The  jury  may  find  a  special  verdict  in  an  action  of  re- 
plevin (^). 

Proof  of  special  reason.  —  By  the  condition  of  the  replevin 
bond,  where  the  action  is  brought  in  the  High  Court,  unless 
judgment  be  obtained  by  default,  the  plaintiff  must  "prove 
before  such  superior  court  that  he  had  good  ground  for  be- 
lieving either  that  the  title  to  the  same  corporeal  or  incor- 
poreal hereditament,  or  some  toll,  market,  fair  or  franchise 
was  in  question,  or  that  such  rent  or  damage  exceeded 
20Z."  (/i)-  It  would  seem  that  the  plaintiff  should  apply 
upon  affidavit  to  the  court  or  a  judge  in  chambers  (/)  for 
leave  to  enter  a  suggestion  on  the  roll,  that  the  plaintiff  has 
proved  before  this  court  that,  &c.  And  when  the  rule  abso- 
lute or  order  for  such  leave  is  obtained  to  make  an  entry  ac- 
cordingly on  the  roll ;  otherwise,  perhaps,  the  plaintiff  and 
his  sureties  may  be  troubled  with  an  action  on  the  replevin 
bond,  notwithstanding  he  obtained  a  verdict  and  judgment 
in  his  favour. 

When  judgment  a  bar  to  other  action.  —  A  judgment  for 
the  plaintiff  in  replevin  is  a  bar  to  an  action  for  damages  for 
the  same  taking  of  the  goods  in  respect  of  which  the  replevin 
was  brought  (/c). 

Costa.  —  Under  11  Geo.  2,  c.  19,  s.  22,  where  a  defendant 
avowed  or  made  cognizance  upon  any  distress  for  rent,  quit- 
rents,  reliefs,  heriots  or  other  services,  and  the  plaintiff  be- 
came nonsuit,  discontinued  his  action,  or  had  judgment 
against  him,  the  defendant  in  re})lcvin  recovered  double  costs. 

(/)  Ash  V.  Wood,  Cro.  KHz.  T)!*.  hut  in  this  case  a  certificate  was  re- 

((/)  Sec  tlie  case  of  .Jones  r.  .Jolin-  fused   hecause   the  plaintiff  had  not 

son,  5  Excli.  802;  7  Exch.  452.  obtained  the  verdict. 

(A)    19   &   20  Vict.  c.    108,  s.  (55;  (/-)  Gibhs  ;;.  Cruii<shank,  L.  R.,  8 

ante,  504.  C.  1'.  4.54  :  42  L.  .1.,  C.  P.  273;  28  L. 

(/)  Not  to  the  Judfje  at  nisi  prius;  T.  7.'55 ;  21  VV.  R.  734. 
Tunniclitfe  v.  Wilmot,  2  C.  &  K.  G2(i, 

70K 


Cn.  XII.  S.  1.]  liEPLEVlN.  *517 

But  now  in  lieu  of  such  double  costs  he  is  entitled  to  receive 
such  full  and  reasonable  indemnity  as  to  all  costs,  charges 
and  expenses  incurred  in  and  about  the  suit  as  shall  be  taxed 
by  the  proper  officer  in  that  behalf  (?). 

Costs  of  distress  not   recoverable.  —  Under  17  Car. 
2,  c.  7,  a  successful  defendant  in  replevin  is  not  *  en-  [*r)17] 
titled  to  the  costs  of  making  the  distress  (m)  ;  and 
the  term  '^  full  costs  "  in  that  statute  has  been  held  to  mean 
ordinary  costs  as  between  party  and  party,  and  not  costs  as 
between  solicitor  and  client  (w). 

Execution  for  defendant.  —  If  the  defendant  have  judgment, 
he  has  execution  by  a  writ  de  retorno  habendo,  to  have  a 
return  of  the  goods  or  cattle  distrained,  and  a  fi.  fa.  for  his 
costs  (w).  It  seems  that  the  writ  of  retorno  habendo  and  a 
fi.  fa.  for  damages  and  costs  may  be  included  in  one  writ  (w). 

Writ  de  retorno  habendo.  —  The  sheriff,  under  the  writ  of 
retorno  habendo,  might,  under  the  old  practice  (which  would 
seem  to  be  still  in  force,  if  the  proceedings  should  be  carried 
so  far),  cause  the  goods  or  cattle  which  were  replevied  to  be 
taken  from  the  plaintiff  and  re-delivered  to  the  defendant ; 
but  this  was  seldom  done.  The  usual  practice  was  for  the 
sheriff  to  return  elongata,  viz.,  that  the  goods  or  cattle  were 
eloigned  and  removed  to  places  unknown. 

Capias  in  withernam.  —  Upon  this  return  being  filed  the  de- 
fendant might  have  a  "  capias  in  withernam,"  by  which  the 
sheriff  was  commanded  to  take  the  cattle,  goods,  and  chat- 
tels of  the  plaintiff,  to  the  value  of  the  cattle,  goods,  and 
chattels  before  taken,  to  be  delivered  to  the  defendant,  to  be 
kept  by  him  till  the  sheriff  can  cause  to  be  returned  the 
cattle,  goods,  and  chattels  before  taken,  &c.  (o).  If  this  was 
returned  nihil  the  defendant  might  sue  out  an  alias,  and 
after  that  a  pluries  ( j9)  :  but  if  these  all  proved  unsuccessful 
he  had  to  sue  the  plaintiff  and  his  sureties  on  the  replevin 
bond. 

(/)  5  &  6  Vict.  c.  97,  s.  2.     But  see  (o)  The    meaning   of   "  in   witlier- 

Garnett  r.  Bradley,  ante,  489  (17).  nam  "  seems  to  be  "by   way  of  re- 

(m)   Jamieson    v.    Trevelyan,     10  prisal."     See  Steph.  Com.  (7th  ed.), 

Exch.  748 ;  24  L.  J.,  Ex.  74.  Vol.  III.,   p.  423,    and  for  form,  see 

(n)  See  Chit.  Forms,  12th  ed.,  vol.  Chit.  Forms  (12th  ed.).  Vol.  2,  p.  627. 
2,  p.  025  <t  se,j.  (jj)  2  Chit.  Arch.  1086  (11th  ed.). 

799 


*518  REMEDIES    FOR    WRONGFUL   DISTRESS.       [Ch.  XII.  S.  1. 

The  sheriff  was  not  bound  to  execute  a  writ  de  retorno 
habendo  by  actually  delivering  the  goods  or  cattle  therein 
mentioned  to  the  defendant,  unless  the  defendant  or  some 
person  on  his  behalf  attended  to  point  out  the  particular 
goods  or  cattle  and  to  receive  the  same.  If  that  were  not 
done  the  sheriff  mioht  make  a  return  to  the  writ  that  no 
person  did  so  attend  (^). 

The  writ  of  retorno  habendo  was  generally  sued  out  for 
the  purpose  of  founding  proceedings  on  the  replevin  bond ; 
but  this  is  unnecessary,  for  as  such  bond  is  condition  to 
prosecute  the  suit  "  with  effect,"  and  also  to  make  a  return, 
if  return  be  awarded,  the  bond  is  forfeited  by  the  plaintiff 
not  prosecuting  his  suit  with  success  (r).  The  bond  is  con- 
sidered as  a  further  and  better  security  for  such  return, 
&c.  (s). 

New  trial.  —  In  replevin,  where  the  verdict  is  for 
[*518]  the  plaintiff,  the  court  %vill  not  *in  general  grant  a 
new  trial,  even  on  payment  of  costs,  without  very 
clear  grounds ;  for  the  landlord  has  other  remedies  for  his 
rent,  and  a  new  trial  would  renew  the  liability  of  the  sureties, 
and  the  plaintiff's  risk  of  paying  full  costs,  charges  and  ex- 
penses (Q. 

(e)  Action  of   Repleviii  removed  by   Certiorari  from   County 
Court  into  the  High   Court. 

Not  by  plaintiff.  —  A  plaintiff  who  has  elected  to  bring  an 
action  of  replevin  in  the  County  Court  cannot  afterwards 
remove  it  into  the  High  Court  (ii). 

By  defendant.  —  The  defendant  in  an  action  of  replevin 
commenced  in  the  County  Court  may  sometimes  cause  such 
action  to  be  removed  by  writ  of  certiorari  into  the  High 
Court,  pursuant  to  19  &  20  Vict.  c.  109,  s.  67  (x). 

Application  for  certiorari.  —  The  application  for  such  writ 

(7)  2  Wms.  Saund.  74  b,  c  ;  2  Cliit.  (/)  Parry  ;-.   Duncan,   7  Bing.  243. 

Arch.  1080.  But  see  Edgson  v.  Cardwell,  L.  R.,  8 

(r)  Watson,  Sheriff,  421.  C.  1'.  047  ;  28  L.  T.  810. 

(s)  Tumor  v.  Turner,  2  Brod.  &  B.  (m)  Ante,  508. 

107.  (^x)   See  Mungean    v.   Wheatley,  6 

Exch.  88  ;  20  L.  J.,  Ex.  106. 
800 


Cii.  XII.  S.  1]  REPLEVIN.  *519 

should  generally  be  made  to  a  judge  at  chambers,  and  not  to 
the  court  except  under  special  circumstances  i^ij). 

Affidavit  in  support.  —  It  should  be  supported  by  an  affi- 
davit entitled  in  the  court  to  which,  or  to  the  judge  of  which 
the  application  is  made  ;  but  not  in  any  cause  or  matter  (z). 
It  must  show  the  special  facts  on  which  the  defendant  relies 
in  support  of  the  application,  and  ^particularly  that  he  has 
good  ground  for  believing  either  that  the  title  to  some  cor- 
poreal or  incorporeal  hereditament,  or  to  some  toll,  market, 
fair  or  franchise  is  in  question,  or  that  the  rent  or  damage  in 
respect  of  which  the  distress  was  taken  exceeded  20L  (a). 

Order  or  summons.  —  The  judge  may  in  his  discretion  order 
the  writ  to  issue  upon  an  ex  parte  application  ;  but  more 
frequently  only  a  summons  to  show  cause  is  granted  in  the 
first  instance  (6). 

Stay  of  proceedings.  —  The  court  or  judge  may  direct  that 
the  rule  nisi  or  summons  shall  operate  as  a  stay  of  proceed- 
ings (t-). 

Service  thereof.  —  It  should  be  drawn  up  and  served  with- 
out delay,  on  the  opposite  party  and  on  the  registrar  of 
the  County  Court.  If  not  so  served  two  clear  days  before 
the  day  fixed  for  the  hearing  of  the  cause  the  judge  of 
the  County  Court  may,  in  his  discretion,  order  the  party 
who  obtained  the  rule  or  summons  to  pay  all  the  costs  of 
the  da}',  or  so  much  thereof  as  he  shall  think  fit,  unless  the 
High  Court  or  a  judge  thereof  shall  have  made  some  order 
respecting  such  costs  (c?).  Where  the  writ  has  been  granted 
on  an  ex  parte  application,  and  the  party  who  obtained  it 
shall  not  lodge  it  with  the  registrar,  and  give  notice  to  the 
opposite  party,  two  clear  days  before  the  day  fixed  for  hear- 
ing the  cause  to  which  it  shall  relate,  the  judge  of 
the  County  Court  may,  in  his  *  discretion,  order  the  [*519] 
party  who  obtained  the  writ  to  pay  all  the  costs  of 
the  dav,  or  so  much  thereof  as  he  shall  think  fit,  unless  the 


(v)  Bowen  v.  Evans,  3  Exch.  Ill ;  (ft)  2  Chit.  Arch.  1088. 

6  D.  &  L.  193.  (c)  19  &  20  Vict.  c.  108,  s.  40. 

(c)  2  Chit.  Arch.  1088  (llth  od.).  (rf)  19  &  20  Vict.  c.  108,  s.  40. 

(o)    See  forms   of  aflSdavit,    Chit. 
Forms,  583  (9th  ed.). 

^  801 


*519  REMEDIES   FOR    WRONGFUL   DISTRESS.         [Ch.  XII.  S.  1. 

High  Court  or  a  judge  thereof  shall  have  made  some  order 
respectmg  such  costs  (e). 

No  renewed  application ;  unless,  &c.  —  By  19  &  20  Vict.  C. 
108,  s.  44,  "  when  any  superior  court  or  a  judge  thereof 
shall  have  refused  to  grant  a  writ  of  certiorari  [&c.]  "no 
other  superior  court  or  judge  thereof  shall  grant  such  writ " 
[&c.]  :  "but  nothing  herein  shall  affect  the  right  of  appealing 
from  the  decision  of  the  judge  of  the  superior  court  to  the 
court  itself,  or  prevent  a  second  application  being  made  for 
such  a  writ "  [&c.]  "  to  the  same  superior  court  or  a  judge 
thereof,  on  grounds  different  from  those  on  wliich  the  first 
application  was  founded." 

The  summons  or  rule  nisi  is  heard  and  determined  in  like 
manner  as  in  other  cases. 

Order  or  rule  absolute.  —  When  an  order  or  rule  absolute 
is  obtained,  the  writ  of  certiorari  may  be  issued  (/).  The 
defendant  must  thereupon  give  security,  to  be  approved  of  by 
one  of  the  masters,  for  such  amount,  not  exceeding  150?.,  as 
such  master  shall  think  fit,  conditioned  as  pointed  out  in  19 
&  20  Vict.  c.  108,  s.  67  (,^).  The  security  is  in  the  form  of 
a  bond,  with  two  sureties,  to  the  plaintiff  (A).  Or  instead 
of  a  bond,  a  deposit  may  be  made  with  a  memorandum  (z). 
Tlie  writ  is  then  delivered  to  the  judge  or  registrar  of  the 
County  Court,  with  such  bond  or  memorandum  annexed, 
who  will  thereupon  make  a  return  to  the  writ  (A;)  ;  and  when 
such  writ  and  return  are  filed  at  the  master's  office  the  pro- 
ceedings are  removed  into  the  superior  court. 

Appearance.  —  The  defendant  should  then  enter  an  appear- 
ance in  the  High  Court  in  the  usual  form  (?),  and  give  notice 
thereof  to  the  plaintiff  or  his  solicitor.  It  seems,  however, 
that  if  the  defendant  will  not  enter  an  appearance,  there  may 
be  considerable  difficulty  in  compelling  him  to  do  so,  but  it 
will  probably  be  always  possible  to  obtain  an  order  at  cham- 


(e)  Id.  8.  41.  (i)  For  forms  of  bond,  deposit,  and 

(/)   Form,  Cliit.  Forms,  084  (9th       return,  see /*o.s7,  Appendix  E.,  Sect.  3, 

ed.).  (b),4,  6,  7. 

(y)  Ante,  605.  (/)    See     Appendix    to    Uules    of 

(//)  Sect.  70,  ante,  606.  Supreme  Court. 
0)  Sect.  71,  ante,  606. 

802 


Cn.  XII.  S.  1.]  REPLEVIN.  *520 

bers  for  the  purpose  (m)  ;  and,  on  the  other  hand,  the 
defendant  could  not  non  pros,  the  pLiintiff  for  not  declaring, 
because  no  day  is  given  by  the  writ  of  certiorari  to  tlie  par- 
ties to  appear  in  the  superior  court  (n),  but  this  will  not 
now  prevent  an  order  being  made  to  dismiss  for  want  of 
prosecution  under  Order  XXVll.  of  the  Rules  of  the  Su- 
preme Court.  And  it  must  not  be  forgotten  that  if  the 
plaintiff  do  not  proceed  in  the  action  with  due  diligence  he 
will  forfeit  the  condition  of  his  bond  given  when  the  goods 
or  cattle  were  replevied,  notwithstanding  the  removal 
of  the  cause  into  a  superior  court :  at  all  events,  *  this  [*520] 
was  so  when  the  proceedings  were  removed  by  re.  fa. 
lo.,  in  which  the  parties  had  a  day  given  them  to  appear  in 
the  superior  court  (o). 

Subsequent  proceedings.  —  The  subsequent  proceedings  are 
in  all  respects  similar  to  those  where  the  action  is  com- 
menced in  the  High  Court  (^).  If  the  defendant  succeed 
in  the  action,  he  must  (unless  the  plaintiff  discontinues,  or 
does  not  prosecute  the  action,  or  becomes  nonsuited  therein) 
prove  before  the  High  Court  that  he,  the  defendant,  had 
good  ground  for  believing  either  that  the  title  to  some  cor- 
poreal or  incorporeal  hereditament,  or  to  some  toll,  market, 
fair  or  franchise  was  in  question,  or  that  the  rent  or  damage 
in  respect  of  which  the  distress  was  taken  exceeded  201.  (^). 
The  mode  of  doing  this  has  been  already  suggested  (r). 

(f)  Proceedings  on  the  Replevin  Bond. 

The  condition  of  a  replevin  bond  varies  according  to  the 
court  in  which  the  action  of  replevin  is  to  be  commenced 
and  prosecuted  (s). 

An  action  on  the  bond  may  be  brought  immediately  on 
the  condition  being  broken  (t).     It  must  be  brought  in  the 

(m)  See  2   Clnt.  Arch.  1089  (11th  293;    Gent   v.   Cutts,    11    Q.  B.  288; 

ed.)  ;  Chit.  Forms,  587  (9th  ed.).  Evans  v.  Bowen,  7  D.  &  L.  320. 

(n)    See    Clerk   v.    Mayor,    &c.   of  {p)  Ante,b\^. 

Berwick,  4  B.    &  C.  649";  Carton  );.  (7)  19  &  20  Vict.  c.  108,  s.  G7 ;  ante, 

Great  Western  B.  Co.,  1  E.  &.  E.  258  ;  469. 
28   L.  J.,  Q.    B.  103;   2  Ciiit.  Arch.  (r)  Ante,  505. 

1316.  (s)  Ante,  501. 

(o)    Morris   v.   Matthews,  2  Q.  B.  (J)  Gilb.  Repl.  225;  see  Waterman 

803 


*521  REMEDIES   FOR   WRONGFUL  DISTRESS.        [Ch.  XII.  S.  1. 

name  of  the  obligee,  his  executors  or  administrators.  It  may 
be  brought  against  all  the  obligors  jointly,  or  against  any 
one  of  them  separately ;  but  not  against  any  two,  unless  the 
other  be  dead.  The  court  in  which  the  action  is  brought 
may  by  rule  or  order  give  such  relief  to  the  obligors  as  may 
be  just,  and  such  rule  or  order  shall  have  the  effect  of  a 
defeasance  of  such  bond(tt).  The  obligees  are  liable  only 
to  the  amount  of  the  penalty  on  the  bond  and  the  costs  of 
the  action  thereon  Qx}.  Therefore  proceedings  in  such  suit 
may  be  stayed  on  payment  of  the  penalty  and  costs,  though 
the  plaintiff's  costs  in  the  replevin  suit  much  exceed  the 
penalty  (^).  A  judge  at  chambers  may  order  the  stay  of 
proceedings  (?/).  The  sureties  are  liable  only  to  the  amount 
of  the  rent  in  arrear  at  the  time  of  the  distress,  and  the 
costs  of  the  action  of  replevin  and  of  the  action  on  the  bond ; 
but  not  for  any  subsequent  rent. 

[*521]  *  (g)  Proceedings  to  obtain  Sum  deposited  in  lieu  of  a 

Bond. 

Where  a  sum  of  money  has  been  deposited  with  a  mem- 
orandum pursuant  to  19  &  20  Vict.  c.  108,  s.  71  (a)  ;  "  the 
judge  of  the  County  Court,  when  the  money  shall  have  been 
deposited  in  such  court,  or  a  judge  of  the  superior  court, 
when  the  money  shall  have  been  deposited  in  a  superior 
court,  may,  on  the  same  evidence  as  would  be  required  to 
enforce  or  avoid  such  bond,  order  such  sum  so  deposited  to 
be  paid  out  to  such  party  or  parties  as  to  him  sliall  seem 
just  "(a).  The  application  should  be  founded  on  a  sufii- 
cient  affidavit  or  affidavits  of  the  facts,  showing  a  breach  or 
breaches  of  the  condition  or  full  performance  thereof,  as  the 
case  may  be. 


V.  Yea,  2  Wils.  41 ;  Tumor  v.  Turner,  (r)  Ilefford  v.  Alger,  1  Taunt.  218; 

2  Brod.  &  v..  107 ;  2  Chit.  Arch.  1101  Branscoinbe  v.  Scarborough,  0  Q.  B. 

(12th  cd.).  i;}. 

(»0  19   &  20   Vict.   c.    108,  8.  70;  (y)  Ward  v.  Ilcnley,  1  Y.  &  J.  285. 

ante,  505.  (a)  Ante,  500. 

804 


Cii.  XU.  S.  2.]  KECOVERY   OF    DAMAGES.  *522 

Sect.  2. —  Damages  for  Wrongful  I)  i  sirens. 
(a)  Summarg  Remedy  within  the  3Ietropolitan  Police  District. 

By  2  &  3  Vict.  c.  71,  "  An  Act  regulating  the  Police  Courts 
in  the  Metropolis,"  it  is  enacted  (sect.  39),  "  That  on  com- 
plaint made  to  any  of  the  said  magistrates  by  any  person  who 
shall,  ivithin  the  77ietropolitan  police  district,  have  occupied  any 
house  or  lodging  hg  the  week  or  month,  or  whereof  the  rent 
does  not  exceed  the  rate  of  fifteen  'pounds  hy  the  year,  that 
his  goods  have  been  taken  from  him  by  an  unlawful  distress, 
or  that  the  landlord,  or  his  broker  or  agent,  has  been  guilty 
of  an  irregularity  or  excess  in  respect  of  such  distress,  it 
shall  be  lawful  for  such  magistrate  to  summon  the  party 
complained  against ;  and  if  upon  the  hearing  of  the  matter 
it  shall  appear  to  the  magistrate  that  such  distress  was  im- 
properly taken,  or  unfairly  disposed  of,  or  that  the  charges 
made  by  the  party  having  distrained,  or  having  attempted  to 
distrain,  are  contrary  to  law,  or  that  the  proceeds  of  the  sale 
of  such  distress  have  not  been  duly  accounted  for  to  the 
owner  thereof,  it  shall  be  lawful  for  the  magistrate  to  order 
the  distress  so  taken,  if  not  sold,  to  be  returned  to  the  tenant 
on  payment  of  the  rent  which  shall  appear  to  be  due  at  such 
time  as  the  magistrate  shall  appoint ;  or  if  the  distress  shall 
have  been  sold,  then  to  order  paj^ment  to  the  said  tenant  of 
the  value  thereof,  deducting  thereout  the  rent  which  shall  so 
appear  to  be  due,  such  value  to  be  determined  by  the  magis- 
trate ;  and  such  landlord  or  party  complained  against,  in 
default  of  compliance  with  any  such  order,  shall  for- 
feit to  the  party  *  aggrieved  the  value  of  such  distress,  [*522] 
not  being  greater  than  fifteen  pounds,  such  value  to 
be  determined  by  the  magistrate." 

This  enactment  (which  is  permissive  only,  and  does  not 
prevent  a  tenant  suing  for  double  value  where  he  can)  is 
confined  to  distresses  for  rent  made  within  the  metropolitan 
police  district,  the  limits  whereof  are  defined  in  the  schedule 
to  10  Geo.  4,  c.  44 ;  also  to  cases  where  the  rent  does  not 
exceed  15Z.  per  annum,  or  the  tenancy  was  by  the  week  or 
month.     It  would  seem  that  it  might  be  very  beneficially 

805 


*522         REMEDIES   FOK   WRONGFUL   DISTRESS.         [Ch.  XII.  S.  2. 

extended  to  the  whole  kingdom,  and  to  larger  tenancies, 
and  also  to  be  made  applicable  to  distresses  for  damage 
feasant,  &c. 

(b)  Action  for  Double  Value  under  2  Will.  ^  Mary,  sess.  1,  c.  5. 

Case  of  sale  vrhere  no  rent  owing.  —  In  cases  where  no  rent 
was  owing,  and  the  distress  has  been  sold,  the  owner  may- 
recover  double  the  value  of  the  goods  distrained.  This  very- 
full  remedy  is  given  by  2  Will.  &  Mary,  sess.  1,  c.  5,  s.  4  (^)  ; 
which  provides  that  "in  case  any  such  distress  and  sale  as 
aforesaid  [i.e.  sale  after  five  days,  failing  a  replevy]  shall  be 
made  by  virtue  and  colour  of  this  present  act  for  rent  pre- 
tended to  be  in  arrear  and  due,  where  in  truth  no  rent  is  in 
arrear  and  due  to  the  person  or  persons  distraining,  or  to 
him  or  them  in  whose  name  or  names  or  right  such  distress 
shall  be  taken  as  aforesaid,  then  the  owner  of  such  goods  or 
chattels  distrained  and  sold  as  aforesaid,  his  executors  or 
administrators,  shall  and  may,  by  action  of  trespass,  or  upon 
the  case,  to  be  brought  against  the  person  or  persons  so  dis- 
training, any  or  either  of  them,  his  executors  or  administra- 
tors, recover  double  of  the  value  of  the  goods  or  chattels  so 
distrained  and  sold,  together  with  full  costs  of  suit  (c).  If 
such  an  action  be  brought,  the  jury  must  be  directed  to  give 
double  value  as  damages,  and  cannot  give  nominal  dam- 
ages (c?). 

(c)    Ordi^iarji  Action  for  Damages. 

Ordinary  action  for  vrrongful  distress.  —  Upon  the  system  of 
procedure  in  the  superior  courts  of  law  under  the  Common 
Law  Procedure  Acts,  the  action  differed  according  as  the  act 
of  the  landlord  in  distraining  was  (1)  wrongful  and  illegal, 
or  (2)  excessive  only,  or  (3)  merely  irregular.  In  the  first 
case  the  tenant  might  have  recourse  to  an  action  of  trespass 
or  trover  or  detinue;  in  the  second  to  an  action  on  the  case 
for  damages  under  the  statute  of  Marlebridge,  52  Hen.  8,  c.  4, 

{h)  Mere  distress   is   not   enough  ;  (c)  As  to  (;osts,  sec  now  K.  S.  C, 

tlierc  must  be  u  sale  for  tlie  statute       188.3,  Order  T>XV. 
to  operate.  {d)  Mastero  c.  Karris,  1  C  ]}.  716. 

806 


Ch.  XII.  S.  2.]  RECOVERY    OF   DAMAGES.  *523 

unless  the  distress  was  plainly  excessive  on  the  face  of  it, 
ill  which  case  it  was  illegal,  and  the  tenant  might 
*  bring  an  action  of  trespass  (e)  ;  or  in  the  third  case  [*523] 
the  tenant  might  maintain  an  action  on  the  case 
against  the  landlord,  or  trover  against  a  purchaser  of  the 
goods.  But  it  must  be  remembered  that,  where  the  distress 
is  only  irregular  and  does  not  amount  to  a  trespass,  and  is 
not  excessive,  the  right  of  action  depends  upon  the  fact  of 
the  tenant  having  suffered  actual  damage,  and  he  cannot 
maintain  anj'^  action  answering  to  the  old  actions  of  tres- 
pass or  trover  (/)• 

One  form  of  indorsement.  —  By  the  Judicature  Acts  and 
the  Rules  of  the  Supreme  Court  these  distinctions  are  for 
the  most  part  swept  away.  There  is  now  one  form  of  indorse- 
ment of  writ  provided  for  all  claims  for  damages  arising  from 
wrongful  distress,  whether  illegal,  excessive,  or  only  irregu- 
lar ((/).  The  statements  of  claim  and  defence  must  set  out 
the  facts  so  far  as  they  are  necessary  to  show  that  the  plain- 
tiff has  a  good  cause  of  action  and  that  the  defendant  has  a 
good  defence  respectively,  care  being  taken  to  set  out  such 
circumstances  as  will  make  the  distress  wrongful  in  some 
of  the  ways  pointed  out  in  the  earlier  part  of  this  chapter. 
There  is,  however,  no  technical  distinction  between  the 
forms  of  action.  There  is  no  specimen  statement  given  in 
the  Appendix  to  the  Rules  of  the  Supreme  Court. 

Against  whom  action  brought.  —  It  is,  however,  still  mate- 
rial to  distinguish  the  various  kinds  of  wrongful  distress  in 
relation  to  the  question  against  what  persons  a  tenant  can 
proceed.  In  the  case  of  an  illegal  distress,  the  action  should 
be  brought  against  the  person  actually  committing  the  illegal 
act,  and  not  against  the  landlord,  unless  it  can  be  shown 
that  he  expressly  authorized  the  act  or'  adopted  and  ratified 
it  afterwards  (A),  of  which  his  presence  on  the  premises 
immediately  after  the  committal  of  the  wrongful  act  is  evi- 

(e)    Moir   v.   Munday,   cited   in    1  ?•.  Smith,  5  C.  &  P.  260;    Carter  v. 

Burr.  582,  590.  Carter,  5  Bing.  406, 

(/)   Kobinson  v.  Waddington,  13  (g)  R.  S.   C.  App.   A.,  Part  II.,  s. 

Q.  B.  758 ;  Lucas  v.  Tarletoii,  3  II.  &  4  ;  post,  App.  D. 
N.  IIG  ;  37  L.  J.,  Ex.  240  ;  Whitworth  (h)  Lewis  v.  Read,  13  M.  &  W.  834 ; 

807 


*524  REMEDIES    FOil    WEONGFUL   DISTRESS.        [Cii.  XII.  S.  2. 

dence  (i),  though  the  mere  receipt  of  the  proceeds  ^yithout 
proof  of  knowledge  of  the  illegal  act  is  not  so  (A-;). 

Damages.  —  When  the  distress  is  illegal  and  therefore  void 
from  the  commeucement,  the  tenant  is  entitled  to  recover 
the  full  value  of  the  goods  distrained  (or  of  such  part  of 
them  as  were  not  subject  to  distress  (0)?  ^^^  ^i^y  damages 
sustained  bj  him,  nor  need  any  deduction  be  made  for  the 
rent  due  from  him  (w).  If,  however,  the  landlord  seize, 
among  others,  things  not  liable  to  distress,  and  on  payment 
of  rent  and  costs  withdraws,  the  tenant  can  only 
[*524]  recover  the  actual  damage  sustained  *  by  him  by  the 
seizure  of  the  particular  privileged  goods  (n).  If 
no  rent  be  in  arrear  and  the  goods  have  been  sold,  the  tenant 
may  recover  double  the  value  of  the  goods  and  full  costs  of 
suit  ((?). 

Action  of  trover,  &c.  —  In  addition  to  proceeding  for  dam- 
ages for  the  illegal  distress,  the  tenant  may,  if  he  prefer  it, 
proceed  in  what  may  still  be  called  an  action  of  trover  or 
detinue  against  the  person  who  has  by  purchase  or  otherwise 
come  into  possession  of  the  goods ;  for  which  cases  forms  of 
indorsement  of  writs  are  provided  (j?).  The  tenant  will  have 
the  same  rights  as  to  the  amount  of  damages  he  may  recover 
as  in  the  former  mode  of  action  (5'). 

Similar  actions  may  be  maintained  by  others  whose  goods 
are  taken  who  are  not  tenants  of  the  landlord  purporting  to 
distrain,  but  those  cases  would  not  be  properly  noticed  here, 
as,  in  regard  to  them,  there  could  be  no  relation  of  landlord 
and  tenant. 

Action  for  overplus.  —  Where  the  only  complaint  against 

Freeman  ;;.  Kosher,  13  Q.  B.  780;  6  (m)  Attack  v.  Bramwell,  3  B.  &  S. 

D.  &  L.  517;  (launtlctt  c.King,  3  C.  520;  32  L.  J.,  Q.  B.  150;  Kdniondson 
B.,  N.  S.  59 ;  Ilaseler  v.  Lcmoyne,  5      v.  Nuttall,  17  C.  B.,  N.  S.  280.     See, 

too,  Tutton  V.   Darke,  and  Nixon  v. 
Freeman,  5  II.  &  N.  047. 

(n)  Hurry  v.  Pocock,   11   M.  &  W. 
740  ;  12  L.  J.,  Ex.  434. 
(0)  Ante,  522. 

(p)  U.  S.  C.  App.  A.,  Part  II.,  s.  2. 
((/)  Atite,  623. 


C.  B.,  N.   S.  530;  but  see  Hurry 
Kickinan,  1  Mood.  &  Rob.  120. 

(i)  Moore  >\  Drinkwatcr,  1  F.  &  F 
134. 

(k)  Green  v.  Wise,  W.  N.  1877,  p 
130. 

(0  Keen  v.  Priest,  4  II.  &  N.  230 ; 
28  Iv.  J.,  Ex.  157 ;  Swire  v.  Lcecli,  18 
C.  B.,  N.  S.  497 ;  34  L.  J.,  C.  P.  150. 

808 


Cii.  XII.  S.  2.]  KECOVERY    OF   DAMAGES.  *525 

the  landlord  is  that  the  sale  has  produced  more  than  the 
amount  due,  and  the  overplus  has  not  been  left  in  the  hands 
of  the  sheriff,  under-sheriff  or  constable,  as  directed  by  2 
Will.  &  Mary,  sess.  1,  c.  5,  the  tenant  should  sue  in  tort,  as 
for  a  breach  of  the  statute,  and  not  for  a  return  of  the 
balance  as  money  received  to  his  use  (r). 

Excessive  or  irregular  distress.  —  Prior  to  11  Geo.  2,  c.  19, 
any  irregularity  in  a  distress  made  the  distress  unlawful,  so 
that  the  full  value  of  the  rent  for  which  the  distress  was 
taken  might  be  recovered  by  action  (s).  But  this  hardship 
upon  landlords  was  remedied  by  sect.  19  of  that  statute, 
which  enacts  that,  "  where  any  distress  shall  be  made  for  any 
kind  of  rent  justly  due,  and  any  irregularity  or  unlawful  act 
shall  be  afterwards  done  by  the  party  or  parties  distraining 
or  b}'  his,  her  or  their  agents,  the  distress  itself  shall  not  be 
deemed  to  be  unlawful,  nor  the  party  or  parties  so  making 
it  be  therefore  deemed  a  trespasser  or  trespassers  ab  initio ; 
but  the  party  or  parties  aggrieved  by  such  unlawful  act  or 
irregularity  shall  or  may  recover  full  satisfaction  for  the 
special  damage  he,  she  or  they  shall  have  sustained  thereby, 
and  no  more,  in  any  action  of  trespass,  or  on  the  case  at  the 
election  of  the  plaintiff  or  plaintiffs ;  provided  always,  that 
where  the  plaintiff  or  plaintiffs  shall  recover  in  such  action, 
he,  she  or  they  shall  be  paid  his  or  their  full  costs  of  suit, 
and  shall  have  all  the  like  remedies  for  the  same  as  in  other 
cases  of  costs." 

By  sect.  20  of  the  same  statute,  "no  tenant,"  &c.  "shall 
recover  in  any  action  for  any  such  unlawful  act  or 
irregularity,  if  tender  of  *  amends  hath  been  made  [*525] 
by  the  party  distraining,  or  his  agent,  before  action 
brought."  If  amends  be  tendered  under  this  section,  the 
landlord  need  not  in  the  case  of  action  pay  the  money  into 
court  (t).     Nor  can  the  person  in  possession  of  the  goods  be 


(r)    Yates   v.    Eastwoorl,   6   Exch.  19,  s.  19;  Six  Carpenters' case,  1  Sm. 

805 ;    20   L.   J.,   Ex.   .303 ;    Evans  v.  L.  C. 

Wright,  2  H.  &  N.  527.  (0  See  Jones  v.  Gooday,  9  M.  & 

(s)  See  preamble  of  11  Geo.  2,  c.  W.  730  (decided  on  a  local  act). 

809 


*525         REMEDIES   FOR    WRONGFUL   DISTRESS.         [Ch.  XII.  S.  2. 

sued  for  a  conversion  of  them  (u).  Whether  the  distress 
was  excessive  is  for  the  jury  (.c). 

A  right  of  action  for  an  excessive  distress  will  not  be 
defeated  by  a  subsequent  arrangement  made  by  the  tenant 
with  the  landlord  to  prevent  a  sale  of  the  goods  (y)  ;  but  a 
recovery  in  replevin  is  a  bar  to  any  subsequent  action  for  an 
excessive  distress  (s). 

Property  of  plaintiff,  —  The  plaintiff  must  of  course  show 
that  he  has  such  a  property  in  the  goods  as  will  allow  liim  to 
maintain  an  action,  and  it  has  been  held  that  the  mere  en- 
joyment of  the  use  of  the  goods  by  a  person  who  is  neither 
legal  nor  equitable  owner  will  entitle  him  to  sue  (a). 

"  Not  guilty  by  statute."  —  With  regard  to  the  defences  to 
actions  for  illegal,  excessive  or  irregular  distresses,  the  state- 
ment of  defence  must  contain  such  matters  as  will  show  the 
defendant's  action  to  have  been  lawful,  and  the  only  matter 
to  be  particularly  noticed  is  that  by  11  Geo.  2,  c.  19,  s.  21, 
the  defendant  was  allowed  to  plead  not  guilty  by  statute, 
and  give  the  special  matter  in  evidence  (6),  a  right  in  all 
cases  in  which  it  existed,  preserved  under  the  Judicature 
Acts  (c),  subject  only  to  the  conditions  that  no  other  defence 
can  be  pleaded  with  it  except  by  leave  of  the  court  or  a  judge, 
and  that  the  defendant  must  state  the  statute  in  the  margin 
of  his  pleading  (c)  ;  and  it  may  be  as  well  to  point  out  that 
in  one  case  at  least  a  plea  of  not  guilty  by  statute,  together 
with  a  special  plea  of  justification,  under  a  right  to  distrain, 
was,  under  the  old  practice,  disallowed,  as  setting  up  matters 
which  could  be  disposed  of  under  the  one  defence  of  the 
general  issue  (c?). 

Section  21  of  11  Geo.  2,  c.  19,  is  as  follows : 

(«)  Whitworth  v.  Smith,  5  C.  &  P.  Pease  v.  Chaytor,  1  B.  &  S.  658,  662 ; 

250 ;  1  Moo.  &  U.  194.  '3  B.  &  S.  620 ;  32  L.  J.,  M.  C.  121. 

(x)  See  Smith  v.  Ashford,  29  L.  J.,  {<i)  Fell  i-.  Whitaker,  L.  R.,  7  Q.  B. 

Ex.  259.  120 ;  41  L.  J.,  Q.  B.  73 ;  25  L.  T.  880 ; 

0/)  Willoufrliby  V.  Backhouse,  2  B.  20  W.  U.  317. 

A  C.  821;    Poles  v.  Iloare,   i   Bing.  (b)  11    Geo.   2,  c.   19,  s.  21.     See 

401 ;  1  C.  &  P.  28;  and  see  this  case  Nash  v.  Lucas,  L.  K.,  2  Q.  B.  590. 

commented  on  in  Glynn  v.  Thomas,  (c)  R.  S.  C.  Order  XIX.,  Rule  12; 

11  Exch.  870,  876.  Order  XXII.,  Rule  19. 

(s)  Pliillips  V.  Berryman,  3  Doug.  (d)  Ncale  w.  Mackenzie,  1   C.  M.  & 

286;    Whitf.    V.    Willis,   2    Wils.  87;  R.  61  ;  2  Dowl.  702. 

SlO 


Cn.  XII.  S.  2.]  RECOVERY   OF   DAMAGES.  *526 

"  In  all  actions  of  trespass,  or  upon  the  case,  to  be  brought 
against  any  person,  or  persons  entitled  to  rents  or  services  of 
any  kind,  his,  her  or  their  bailiff  or  receiver,  or  other  person, 
relating  to  any  entry  by  virtue  of  this  act,  or  otherwise,  upon 
the  premises  chargeable  with  such  rents  or  services,  or  to  any 
distress  or  seizure,  sale  or  disposal,  of  any  goods  or  chat- 
tels thereupon,  it  shall  and  may  be  lawful  to  and 
*  for  the  defendant  or  defendants  in  such  actions  to  [*526] 
plead  the  general  issue  and  give  the  special  matter 
in  evidence,  any  law  or  usage  to  the  contrary  notwithstand- 
ing ;  and  in  case  the  plaintiff  or  plaintiffs  shall  become  non- 
suit, discontinue  his  or  their  action,  or  have  judgment  against 
him,  her  or  them,  the  defendant  or  defendants  shall  recover 
double  costs  of  suit." 

This  section  is  very  wide,  but  it  would  seem  to  include 
cases  of  irregular  and  excessive  distress  only,  and  not  to 
apply  to  unlawful  distress. 

The  defendant  is  not  bound  to  avail  himself  of  the  section, 
but  may,  it  is  conceived  without  leave,  enter  a  defence  in  the 
ordinary  form.  If  the  defendant  has  not  previously  so  ten- 
dered and  pays  money  into  court,  the  plaintiff  is  entitled 
only  to  his  ordinary  costs  of  suit,  and  not  to  the  full  costs, 
&c.,  which  are  given  by  5  &  6  Vict.  c.  97,  s.  1,  in  lieu  of  the 
double  costs  given  by  11  Geo.  2,  c.  19,  s.  21  (e). 

Under  the  defence  of  "  not  guilty  by  statute  "  the  tenancy 
and  ownership  of  the  goods,  as  well  as  other  matter  of  justi- 
fication, is  put  in  issue  (/). 

Measure  of  damages.  —  The  measure  of  damages  appears  to 
be,  in  cases  of  excessive  distress,  the  fair  value  of  the  goods 
(not  merely  what  they  would  have  fetched  at  a  broker's  sale), 
minus,  however,  the  rent  due  and  the  cost  of  the  distress  ( (/)  ; 
and  although  the  plaintiff  fail  to  prove  that  he  has  sustained 
actual  damage,  yet  on  proof  only  that  the  distress  was  exces- 

(e)  Handcock  v.  Foulkes,  9  M.  &  (g)  See  Biggins  r.  Goode,  2  C.  & 
W.  431;  1  Dowl.,  N.  S.  658.  11  Geo.  J.  364;' Knight  v.  Egerton,  7  Exch. 
2,  c.  10,  s.  21  is  repealed  by  5  &  6  407 ;  Piggott  v.  Birtles,  1  M.  &  W. 
Vict.  c.  97,  s.  1,  so  far  as  costs  are  441 ;  and  at  nisi  prius,  Knotts  v.  Cur- 
concerned,  tis,  5  C.  &  P.  322;  Wells  v.  Moody,  7 

(/)  Williams  v.  Jones,  11  A.  &  E.  C.  &  P.  59;  Whitworth  v.  I\Iadden,  2 

643;  Ross  v.  Clifton,  Id.  631.  C.  &  K.  517. 

811 


*527  REMEDIES   FOR   WRONGFUL   DISTRESS.        [Ch.  XII.  S.  3. 

sive  he  is  entitled  to  recover  some  damages  (A).  If,  how- 
ever, the  distress  be  merely  irregular  the  defendant  must 
succeed,  unless  actual  damage  be  proved  (^). 


Sect.  3.  —  Remedy  by  proceedings  before  Justices  or   County 
Court,  under  Agricultural  Holdings  Act. 

Summary  determination  of  dispute.  —  If  a  distress  has  been 
made  upon  a  holding  to  wliich  the  Agricultural  Holdings 
Act  applies  (^),  a  special  and  summary  mode  of  determining 
any  dispute  arising  out  of  such  distress  may,  but  need  not  of 
necessity,  be  resorted  to.     For  it  is  provided  by  sect.  46  of 

that  act  that  "  where  any  dispute  arises,"  either  (a) 
[*527]  as  to  a  distress  having  *  been  levied  contrary  to  the 

act  (Z),  or  (b)  as  to  the  ownership  of  live  stock  dis- 
trained or  as  to  the  price  for  feeding  (7;t),  or  (c)  as 'to  any 
other  matter  or  thing  relating  to  a  holchng  to  which  the  act 
applies,  "  such  dispute  may  be  heard  and  determined  by  the 
county  court  (w),  or  a  court  of  summary  jurisdiction  "  (o), 
either  of  which  courts  may  make  an  order  for  restoration, 
&c.,  "  or  may  make  any  other  order  which  justice  requires." 
By  the  same  section  there  is  an  appeal  from  the  court  of 
summary  jurisdiction,  but  none  from  the  county  court,  and 
it  is  further  provided  by  sect.  49  that  no  order  of  the  county 
court  or  of  a  court  of  summary  jurisdiction  shall  be  removed 
by  certiorari. 

Application  of  s.  46.  —  This  Section  appears  to  be  open  to 
any  party,  whether  landlord,  tenant  or  other,  to  a  dispute 
within  its  meaning.  It  gives  a  cumulative  remedy,  and  no 
party  is  bound  to  have  recourse  to  it.  By  having  recourse 
to  it,  a  party  would  not  be  legally  bound  to  carry  his  com- 

(A)  Chandler  v.  Doulton,  .'i  H.  &  C.  (m^  See  s.  44  of  the  act,  ante,  452. 

553;  34  L.  J.,  Ex.  89.  («)   That  is  by  s.  61   the  county 

(/)  Lucas  V.  Tarleton,  3   II.   &  N.  court  within  tlie  district  within  wliicli 

11 'i;  27  L.  J.,   Ex.   246;  Rodgers  v.  the  larger  part  thereof  is  situate. 
I'arker,  18C.  B.  112;  2.'")  L.  J.,  C.  P.  (o)    That    is    by   justices    of    the 

220.  peace,  i)resumably  of  tlie  petty  ses- 

(k)  See  Chap.  XI.,  Seel.  5,  ante.  sional  division,  but  the  act  is  silent 

(/)  See  8.  44  of  the  act,  Sect.  5,  as  to  this. 
ante,  430. 

812 


Cii.  XII.  S.  3]  RECOVEKY   OF   DAMAGES.  *527 

plaint  through  up  to  decision,  but  would,  it  is  conceived,  be 
bound  by  any  decision  arrived  at.  The  words  "  may  be 
heard  and  determined "  would  seem  to  have  a  compulsory 
force,  so  as  not  to  admit  of  the  courts  named  declining  juris- 
diction (/>). 

(/O  See  Maxwell  on  Statutes,  2nd       L.  R.,    1    Q.    B.   D.    201,   and  other 
ed.,  p.  218.  citing  Reg.  v.  Adamson,       cases. 

813 


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